William Henry Shane v. the Parish of Jefferson, State of Louisiana, and the Jefferson Parish Economic Development Commission , 2015 La. LEXIS 2549 ( 2015 )

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #063
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 8th day of December, 2015, are as follows:
BY HUGHES, J.:
2014-C -2225 WILLIAM HENRY SHANE v. THE PARISH OF JEFFERSON, STATE OF
LOUISIANA, AND THE JEFFERSON PARISH ECONOMIC DEVELOPMENT
COMMISSION (Parish of Jefferson)
Retired Judge Hillary J. Crain, assigned as Justice ad hoc,
sitting for Justice Greg G. Guidry, recused.
Accordingly, we reverse the appellate court decision, and we
reinstate the district court decision. We remand this matter to
the district court for further proceedings consistent with the
foregoing.
REVERSED AND REMANDED.
JOHNSON, C.J. additionally concurs and assigns reasons.
KNOLL, J., additionally concurs for reasons assigned by C. J.
Johnson
CRICHTON, J. additionally concurs for reasons assigned by C. J.
Johnson
GUIDRY, J., recused.
12/08/15
SUPREME COURT OF LOUISIANA
NO. 2014-C-2225
WILLIAM HENRY SHANE
VERSUS
THE PARISH OF JEFFERSON, STATE OF LOUISIANA, AND
THE JEFFERSON PARISH ECONOMIC DEVELOPMENT COMMISSION
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIFTH CIRCUIT, PARISH OF JEFFERSON
HUGHES, J.*
This case presents the issue of whether the email communications of an
employee of a public agency, via the public agency‟s email system, on private
political matters with private individuals, are subject to disclosure under
Louisiana‟s Public Records Law, LSA-R.S. 44:1 et seq., when those emails have
been referenced in audits of the public agency. Upon a balancing of the public and
private interests discussed hereinafter, we conclude that constitutional rights of
privacy and association asserted by the plaintiff/private email correspondent are
adequately protected by the release of the emails with redaction of all references to
the private individuals, as ordered by the district court. Therefore, we reverse the
appellate court decision and reinstate the district court decision.
*Retired Judge Hillary J. Crain, assigned as Justice ad hoc, sitting for Justice Greg G. Guidry,
recused.
FACTS AND PROCEDURAL HISTORY
William Henry Shane, a private citizen, exchanged emails related to political
matters in 2010 with Lucien Gunter, who was then the Executive Director of the
Jefferson Parish Economic Development Commission (“JEDCO”).1 Both men
were also members of two private nonprofit organizations, the Jefferson Business
Council (“JBC”) and the Committee for a Better Jefferson (“CBJ”), which were
organizations comprised of local businesspersons who sought to improve the
economic well-being and quality of life in Jefferson Parish. In addition, Mr.
Gunter and Mr. Shane were members of the Jefferson Community Foundation
(“JCF”), a public charity administering donations for the educational, cultural, and
charitable benefit of Jefferson Parish citizens. The emails at issue were exchanged,
during 2010, between Mr. Gunter (via his JEDCO email address), Mr. Shane, and
other members of these organizations.
In June of 2012, the results of an audit on JEDCO operations were released
by outside auditing company Postlethwaite & Netterville, which noted that there
had been some “de minimis use” of JEDCO‟s email systems by “certain JEDCO
employees” to engage in “political campaign activities” during 2010.
Thereafter, the results of an internal audit were released by Jefferson Parish
auditor Tommy Fikes, in August of 2012, which also addressed Mr. Gunter‟s use
of his JEDCO email for private purposes, along with other alleged improprieties
related to Mr. Gunter‟s employment as JEDCO‟s Executive Director. Mr. Fikes‟
report noted the fact that the Postlethwaite & Netterville audit report referenced de
minimis use of JEDCO‟s email system for political activities; however, the Fikes
1
JEDCO was created by LSA-R.S. 34:2021(A) as a “special parish district,” originally
designated as the “Jefferson Parish Economic Development and Port District,” having the power
“to acquire, construct, improve, maintain, and operate projects” and “to provide such additional
parish services within the district as may be required by the Jefferson Parish Council.” JEDCO
was further declared to be “a body politic and political subdivision of the state of Louisiana” by
LSA-R.S. 34:2021(A).
2
report focused on Mr. Gunter‟s “significant political activity related to the 2010
Jefferson Parish School Board Election” and concluded that the use of Mr.
Gunter‟s “public time” for his political activity should be reviewed by the JEDCO
Board of Commissioners for any violation of the Louisiana Code of Ethics,
particularly LSA-R.S. 42:1116(B).2
Subsequently, on October 26, 2012, The Times-Picayune reporter Drew
Broach transmitted a public records request, via email, to JEDCO seeking to
inspect the following:
(1) All “political” emails that were so deemed during or as a result of
JEDCO‟s annual audit for 2011. This should include emails composed
and sent in 2010.
(2) All correspondence between JEDCO and the Jefferson Parish
attorney‟s office, or other attorneys, relating to the JEDCO executive
director‟s residency requirement.
Thereafter, on November 8, 2012, Mr. Broach submitted a “revised and
restated” public records request to JEDCO, requesting release of the following:
all emails that were referenced by Postlethwaite & Netterville
2
Mr. Fikes‟ report also pointed out the following additional irregularities related to Mr. Gunter‟s
JEDCO employment: (1) although JEDCO‟s executive director is required by Jefferson Parish
ordinance to be a resident of Jefferson Parish, Mr. Gunter‟s proof of residence was a lease
agreement on a local apartment, and he had admitted that he had obtained the lease to satisfy the
residency requirement, that he had not spent any nights in the apartment, and that he lived with
his wife in their St. Tammany Parish home (on which he had a homestead exemption and where
he was registered to vote); (2) although Jefferson Parish policy provided only for reimbursement
of out-of-town travel-related meals and JEDCO had no specific policy allowing for the
reimbursement of in-town meals for employees or their guests, Mr. Gunter had been reimbursed
by JEDCO for in-town meals for himself and his guests, from January 1, 2010 through May 31,
2012, in the amount of $11,041.10, and Mr. Gunter had set up a charge account at Andrea‟s
Restaurant in JEDCO‟s name to charge meals there; (3) although JEDCO had no policy relative
to car allowances and a car allowance received by a Jefferson Parish employee ordinarily
covered mileage, parking, tolls, insurance, and maintenance on the use of a personal vehicle,
Mr. Gunter received a $750 monthly car allowance and obtained additional reimbursements from
JEDCO for mileage, parking, and tolls, from January 2010 through May 2012, totaling
$1,211.53; also, Mr. Gunter obtained his monthly car allowance from JEDCO, via
reimbursement request, when the car allowance amounts should have been reported on his W-2
forms as additional income; (4) although the bills of other executive employees, who were
provided cellular phones by JEDCO, were paid by JEDCO directly to the cellular provider, Mr.
Gunter received reimbursement for his personal cellular phone bills, at his “base” monthly rate
of $80 for a “family talk” plan, under which two of his family members also had cellular service
at a rate of $9.99 per month (for which no reimbursement was sought), and all three of the
Gunter family phones shared the available minutes on the plan; and (5) Mr. Gunter‟s December
15, 2009 pay increase was not properly documented, in the auditor‟s opinion, since it was
approved via unsigned emails, rather than by original signed documents.
3
professional accounting corporation on Page 51 of the JEDCO‟s
Financial Statements and Schedules for the year ending Dec. 31,
2011, said report bearing a release date of June 6, 2012. I specifically
refer to this language from said report: “During the course of our
audit procedures for the year ended December 31, 2011, we were
made aware of certain JEDCO employees that were engaged in
political campaign activities during the year ended December 31,
2010. We observed de minim[is] use of JEDCO‟s email system to
engage in these activities.”
JEDCO‟s then-public records custodian, Cynthia Grows, denied the public records
request, stating that the emails at issue were not subject to disclosure because they
were “purely personal in nature” and had “no relation to the public business of
JEDCO,” and, even if considered public records, they were exempted from
disclosure under LSA-Const. Art. I, Sec. 5‟s right to privacy.
Mr. Broach again modified his public records request, on November 21,
2012, to ask that the emails be released after redaction to mask the identities of
senders or recipients who were not JEDCO employees. Ms. Grows again denied
the request “for the same reasons given” in her earlier denial.
On December 20, 2012, The Times-Picayune and Drew Broach submitted a
public records request to Jefferson Parish, seeking release of the emails previously
sought in the November 8, 2012 public records request submitted to JEDCO.
Jefferson Parish (having obtained the emails for purposes of the internal audit by
Mr. Fikes) concluded that the emails were public records and announced its intent
to make the records available for public inspection on February 1, 2013.
Mr. Shane then filed suit for declaratory and injunctive relief, on February 1,
2013, against Jefferson Parish and JEDCO, seeking to prevent the disclosure of the
email correspondence with Mr. Gunter, asserting a right of privacy under LSA-
Const. Art. I, Sec. 5 (“Every person shall be secure in his person, property,
communications, houses, papers, and effects against unreasonable searches,
seizures, or invasions of privacy.”). A temporary restraining order was
immediately issued by the district court, enjoining the defendants from “permitting
4
inspection and/or copying of any and all emails between [Mr. Shane] and any other
members of [JBC, CBJ, and/or JCF], including but not limited to Lucien Gunter,
by The Times-Picayune and/or The Advocate.”
Jefferson Parish responded, admitting that it did announce its intent to make
the emails available to the requesting parties and further alleging that “JEDCO
employees were aware that they were using government time, talent and resources
to further their political activities, and thus had no expectation of privacy.”
JEDCO responded, stating that the plaintiff was “entitled to an injunction
against the Parish of Jefferson.” JEDCO further alleged that its current public
records custodian, Dottie Stephenson, concurred in the prior denial of the media‟s
public records request by its prior public records custodian, Cynthia Grows.
JEDCO also asserted that the media‟s sole remedy, upon denial of its request, was,
pursuant to LSA-R.S. 44:35, to institute suit against its custodian for the issuance
of a writ of mandamus or for injunctive or declaratory relief.3 JEDCO alleged that
the media failed to avail themselves of the sole remedy available under LSA-R.S.
44:35 and, instead, “attempted to circumvent the custodian (JEDCO) and made a
public records request on Jefferson Parish, who is not the custodian of the
electronic correspondence in question.” JEDCO alleged that its designated records
custodian (previously, Ms. Grows; currently, Ms. Stephenson) was the only person
authorized to release the emails at issue under the Public Records Law.
An intervention was filed by The Times-Picayune, L.L.C. and Drew Broach
(hereinafter, “media-intervenors”) to assert the public‟s right of access and to
oppose the plaintiff‟s request for an injunction. In his answer and affirmative
defenses to the intervention, Mr. Shane further alleged that release of the emails
3
See LSA-R.S. 44:35(B) (“[T]he court has jurisdiction to enjoin the custodian from withholding
records or to issue a writ of mandamus ordering the production of any records improperly
withheld from the person seeking disclosure. The court shall determine the matter de novo and
the burden is on the custodian to sustain his action.”).
5
would violate LSA-Const. Art. I, Sec. 7 (“No law shall curtail or restrain the
freedom of speech or of the press. Every person may speak, write, and publish his
sentiments on any subject, but is responsible for abuse of that freedom.”) and LSA-
Const. Art. I, Sec. 9 (“No law shall impair the right of any person to assemble
peaceably or to petition government for a redress of grievances.”).
Judgment was thereafter rendered by the district court, on March 1, 2013,
granting Mr. Shane‟s request for injunctive relief, in part. Because the emails had
been used by JEDCO‟s external auditor and by Jefferson Parish‟s internal auditor,
in reviewing the business affairs of JEDCO, the district court concluded that the
emails were public records. However, the district court further reasoned that, since
Mr. Shane was entitled to assert constitutional rights of privacy and association, as
a private citizen, relative to the emails, a balancing of the various interests required
that the emails should be redacted prior to release as public records. The district
court ordered Jefferson Parish to redact the emails requested in the media‟s public
records request and then to allow inspection. Further, the district court ruled that
the redaction should include the identities of all persons reasonably believed to
have been private citizens, and not public employees, at the time the emails were
written. The redactions, as to the private citizens, were to include names,
addresses, email addresses, phone numbers, and places of employment, within the
sender, recipient, address, and body sections of the emails, as well as within any
attachments to the emails. The names of the employees of JEDCO, elected
officials, and political candidates, who had qualified for the office, were not
ordered redacted.
The appellate court reversed the district court decision and granted the
plaintiff injunctive relief. See Shane v. Parish of Jefferson, 13-0590 (La. App. 5
Cir. 9/24/14), 150 So. 3d 406. In so ruling, the appellate court held that, based on
the facts in this case, the emails in question were “purely” private and not subject
6
to the Public Records Law.
The media-intervenors sought review of the appellate court decision, and
this court granted a writ of certiorari. See Shane v. Parish of Jefferson, 14-2225
(La. 2/6/15), 157 So. 3d 1137.
LAW AND ANALYSIS
Standing of Plaintiff and JEDCO
As an initial matter, we address the media-intervenors‟ contention that
“Shane and JEDCO lack standing to challenge whether Jefferson Parish is a
custodian of Gunter‟s emails . . . .”
Louisiana Code of Civil Procedure Article 1872 states:
A person interested under a deed, will, written contract or other
writing constituting a contract, or whose rights, status, or other legal
relations are affected by a statute, municipal ordinance, contract or
franchise, may have determined any question of construction or
validity arising under the instrument, statute, ordinance, contract, or
franchise and obtain a declaration of rights, status, or other legal
relations thereunder. [Emphasis added.]
Clearly, LSA-C.C.P. art. 1872 provides a cause of action to a person affected
by a statute for a court to determine what construction is to be applied to the statute
and the person‟s rights under the statute, when there is a present, justiciable
controversy. See Church Point Wholesale Beverage Co. v. Tarver, 614 So. 2d
697, 701 (La. 1993).
Because Mr. Shane is a “person” “whose rights . . . are affected by a statute”
(i.e., LSA-R.S. 44:1(A)(2)(a)‟s definition of a “public record”), he is entitled to
“have determined any question of construction . . . arising under the . . . statute”
(i.e., Jefferson Parish‟s determination that the emails are public records subject to
disclosure under the Public Records Law, LSA-R.S. 44:1 et seq.) and to “obtain a
declaration of rights, status, or other legal relations thereunder.”
Mr. Shane alleged that the emails at issue involved private political matters
and were sent between himself, Mr. Gunter, and members of private associations to
7
which they belonged. Mr. Shane further alleged that he was entitled to declaratory
relief, ruling that the emails are not public records, that Jefferson Parish is not a
custodian of the emails, and that because of his rights of privacy and association
the emails are exempt from disclosure under the Public Records Law.
We find no merit in the media-intervenors‟ contention that Mr. Shane lacks
standing to challenge Jefferson Parish‟s determination that the emails are public
records. Further, the media-intervenors‟ contention is inappropriately applied to
JEDCO, since JEDCO is merely a defendant in this case, not a petitioner.
Motion to Strike
The plaintiff has also filed with this court a motion to strike the
relators/media-intervenors‟ April 2, 2015 reply brief, contending that a “reply”
brief was not authorized either by leave of this court or by this court‟s rules, citing
La. Sup. Ct. Rules, Rule VII, § 11.1, which provides that “[s]upplemental briefs on
the merits, or briefs in support of or in opposition to motions, may be filed at any
time. However, a brief filed without leave after the matter is argued or submitted
may not be considered.” The plaintiff asserts that “supplemental” briefs should be
directed to only the citation of supplemental authorities and were not intended to
include “reply” briefs containing only rebuttal arguments, as submitted by relators
herein.
We find no merit in the plaintiff‟s interpretation of this court‟s rules. See
La. Sup. Ct. Rules, Rule VII, § 11.2 (directing that “[if] pertinent and significant
authorities come to a party‟s attention after all original and reply briefs have been
filed - or after oral argument but before decision - a party may promptly advise the
clerk by letter . . . .” (emphasis added)). The filing of a reply brief was intended to
be included within the purview of “[s]upplemental briefs on the merits,” as stated
in this court‟s Rule VII, § 11.1.
8
Louisiana Public Records Law
No person shall be denied the right to observe the deliberations of public
bodies and examine public documents, except in cases established by law. LSA-
Const. Art. XII, Sec. 3.
The legislature, by enacting the “Public Records Law” (LSA-R.S. 44:1 et
seq.), sought to guarantee, in the most expansive and unrestricted way possible, the
right of the public to inspect and reproduce those records which the laws deem to
be public. There was no intent on the part of the legislature to qualify, in any way,
the right of access. See Landis v. Moreau, 00-1157 (La. 2/21/01), 779 So. 2d 691,
694-95.
The legislature has recognized that it is essential to the operation of a
democratic government that the people be made aware of all exceptions,
exemptions, and limitations to the laws pertaining to public records. LSA-R.S.
44:4.1(A). In order to foster the people‟s awareness, the legislature declared that
all exceptions, exemptions, and limitations to the laws pertaining to public records
shall be provided for in the Public Records Law or the Constitution of Louisiana.
Id. Any exception, exemption, and limitation to the laws pertaining to public
records not provided for in the Public Records Law or in the Constitution of
Louisiana has no effect. Id. Thus, access to public records can be denied only
when the Public Records Law or the Constitution specifically and unequivocally
provide otherwise. See DeSalvo v. State, 624 So. 2d 897, 902 (La. 1993), cert.
denied, 510 U.S. 1117, 114 S. Ct. 1067, 127 L. Ed. 2d 386 (1994).
As with Article XII, Section 3, the Public Records Law should be construed
liberally in favor of free and unrestricted access to public documents. Landis v.
Moreau, 779 So. 2d at 695; Title Research Corporation v. Rausch, 450 So. 2d
933, 937 (La. 1984). Whenever there is doubt as to whether the public has the
right of access to certain records, the doubt must be resolved in favor of the
9
public‟s right to see; to allow otherwise would be an improper and arbitrary
restriction on the public‟s constitutional rights. In re Matter Under
Investigation, 07-1853 (La. 7/1/09), 15 So. 3d 972, 989; Capital City Press v.
East Baton Rouge Parish Metropolitan Council, 96-1979 (La. 7/1/97), 696
So. 2d 562, 564; Title Research Corporation v. Rausch, 450 So. 2d at 936.
Any person of the age of majority may inspect, copy, or reproduce any
public record or may obtain a copy or reproduction of any “public record” in
accordance with the provisions of the Public Records Law, except as otherwise
provided by law. See LSA-R.S. 44:31(B). Pursuant to LSA-R.S. 44:1(A)(2)(a),
“public records” encompass, “except as otherwise provided in [the Public Records
Law] or the Constitution of Louisiana,” the following:
All books, records, writings, accounts, letters and letter books, maps,
drawings, photographs, cards, tapes, recordings, memoranda, and
papers, and all copies, duplicates, photographs, including microfilm,
or other reproductions thereof, or any other documentary materials,
regardless of physical form or characteristics, including information
contained in electronic data processing equipment, having been used,
being in use, or prepared, possessed, or retained for use in the
conduct, transaction, or performance of any business, transaction,
work, duty, or function which was conducted, transacted, or
performed by or under the authority of the constitution or laws of this
state, or by or under the authority of any ordinance, regulation,
mandate, or order of any public body[4] or concerning the receipt or
payment of any money received or paid by or under the authority of
the constitution or the laws of this state . . . .
This definition expressly includes all “letters . . . regardless of physical form . . . ,
including information contained in electronic data processing equipment,” which
are “used . . . in the . . . performance of any . . . work, duty, or function . . .
performed by or under the authority of the . . . laws of this state . . . or order of any
public body.” Clearly “electronic mail,” or “email,” falls within the definition of
4
The phrase “public body” means “any branch, department, office, agency, board, commission,
district, governing authority, political subdivision, or any committee, subcommittee, advisory
board, or task force thereof, any other instrumentality of state, parish, or municipal government,
including a public or quasi-public nonprofit corporation designated as an entity to perform a
governmental or proprietary function, or an affiliate of a housing authority.” LSA-R.S.
44:1(A)(1).
10
“letters,”5 despite generally lacking a physical form and though usually stored in an
electronic format, and, if used in the performance of any work, duty, or function of
a public body, under the authority of state or local law, should be deemed a “public
record.”
When a law is clear and unambiguous and its application does not lead to
absurd consequences, the law shall be applied as written and no further
interpretation may be made in search of the intent of the legislature. LSA-C.C. art.
9. See also LSA-R.S. 1:4. It is presumed that every word, sentence, or provision
in a law was intended to serve some useful purpose, that some effect is to be given
to each such provision, and that no unnecessary words or provisions were
employed. Guillory v. Pelican Real Estate, Inc., 14-1539 (La. 3/17/15), 165
So. 3d 875, 877 (per curiam); Sultana Corporation v. Jewelers Mutual
Insurance Company, 03-0360 (La. 12/3/03), 860 So. 2d 1112, 1119. As a result,
courts are bound, if possible, to give effect to all parts of a statute and to construe
no sentence, clause, or word as meaningless and surplusage if a construction giving
force to, and preserving, all words can legitimately be found. Guillory v. Pelican
Real Estate, Inc., 165 So. 3d at 877; Watkins v. Exxon Mobil Corporation, 13-
1545 (La. 5/7/14), 145 So. 3d 237, 243. A statute must be applied and interpreted
in a manner that is logical and consistent with the presumed purpose and intent of
the legislature. Watkins v. Exxon Mobil Corporation, 145 So. 3d at 243.
Finally, it is presumed that the legislature acts with full knowledge of well-settled
principles of statutory construction. Id.; Sultana Corporation v. Jewelers Mutual
Insurance Company, 860 So. 2d at 1119.
Louisiana‟s Public Records Law contains a broad definition of “public
5
See LSA-R.S. 1:3 (“Words and phrases shall be read with their context and shall be construed
according to the common and approved usage of the language . . . .”). “Letter” is defined as: “A
dispatch or epistle; a written or printed message; a communication in writing from one person to
another at a distance . . . .” Black‟s Law Dictionary 813 (5th ed. 1979).
11
records.” Copeland v. Copeland, 07-0177 (La. 10/16/07), 966 So. 2d 1040, 1043.6
Application of this broad definition to the facts of the instant case, produces the
result adopted by the district court on the issue of the inclusiveness of the term
“public records.” With respect to JEDCO, the emails at issue were used in its
regular business, transactions, work, duties, or functions, since the emails were
used in the performance of the external audit of JEDCO‟s operations by
Postlethwaite & Netterville. With respect to Jefferson Parish, the emails were used
in its Jefferson Parish Council-ordered audit of JEDCO, performed by internal
auditor Tommy Fikes. Thus, the district court concluded, resolving all doubt in
favor of the public‟s right to see, that the emails were public records, while the
appellate court concluded that the emails were “purely” private communications
and did not fall within the definition of “public records.”
Our review of the Public Records Law, particularly the definition of “public
records,” the laws specifically applicable to JEDCO, and the evidence submitted in
this matter, lead us to conclude that the district court was correct in determining
that the use of these emails in the Postlethwaite & Netterville and the Jefferson
Parish audits resulted in the emails falling within the definition of “public records,”
as defined in 44:1(A)(2)(a).
Pursuant to LSA-R.S. 34:2023, JEDCO is entitled to “exercise all powers of
a political subdivision necessary or convenient for the carrying out of its objects
and purposes . . . .” Further, JEDCO is expressly authorized, by LSA-R.S.
6
This court has previously noted that a literal reading of the definition of “public records” would
expose “virtually all of this Court‟s papers, including law clerk memoranda, draft opinions, and
the most sensitive of our internal documents to public inspection.” See Bester v. Louisiana
Supreme Court Committee on Bar Admissions, 00-1360 (La. 2/21/01), 779 So. 2d 715, 719
n.2 (wherein we recognized that “an additional, limited exception to public disclosure exists for
documents we determine should remain confidential, in situations where we are exercising our
inherent authority as the head of a separate and independent branch of state government,” since
“[i]n exercising its sovereign rulemaking authority, a state supreme court occupies the same
position as that of the state legislature . . . . Thus, when we exercise our inherent rulemaking
authority regarding bar admissions, we occupy a position not unlike that of the Legislature, and
our decisions concerning the disclosure or non-disclosure of documents within our exclusive
purview falls within the „except‟ provision of Article XII, § 3 of the Constitution.”).
12
34:2022(B), to “contract for . . . financial . . . and other professional services
necessary or expedient in the conduct of its affairs.” Moreover, JEDCO is required
by LSA-R.S. 34:2032(B) (“The financial records of the district shall be audited
pursuant to R.S. 24:513.”) to obtain an audit of its financial records.
As stated in the June 6, 2012 Postlethwaite & Netterville audit report, the
financial report issued in conjunction with the audit “is designed to provide
taxpayers, customers, and creditors with a general overview of JEDCO‟s finances
and to show JEDCO‟s accountability for the money it receives.” In addition, the
Postlethwaite & Netterville report stated: “As part of obtaining reasonable
assurance about whether JEDCO‟s financial statements are free of material
misstatement, we performed tests of its compliance with certain provisions of laws,
regulations, contracts and grant agreements, noncompliance with which could have
a direct and material effect on the determination of financial statement amounts.”
The report further stated: “We noted certain matters that we reported to
management of JEDCO . . . identified in our audit [and] described in the
accompanying schedule of findings and questioned costs.” The emails at issue in
the instant case were listed in the Postlethwaite & Netterville audit report, in the
“Schedule of Findings and Questioned Costs,” under Item (2), “Findings Relating
to the Financial Statement Reported in accordance with Government Auditing
Standard,” stating in pertinent part:
Condition: During the course of our audit procedures for the year
ended December 31, 2011, we were made aware of certain JEDCO
employees that were engaged in political campaign activities during
the year ended December 31, 2010. We observed the de minimis use
of JEDCO‟s email system to engage in these activities.
Criteria: Louisiana R.S. 18:1465[7] provides that no public funds shall
7
Louisiana Revised Statute 18:1465 provides:
A. No public funds shall be used to urge any elector to vote for or against
any candidate or proposition, or be appropriated to a candidate or political
organization. This provision shall not prohibit the use of public funds for
dissemination of factual information relative to a proposition appearing on an
13
be used to urge any elector to vote for or against any candidate or
proposition, or be appropriated to a candidate or political
organization.
Effect: JEDCO is not in compliance with the requirements as
described in Louisiana R.S. 18:1465.
Cause: JEDCO employees were not aware that the de minimis use of
email as described above was not in compliance with Louisiana R.S.
18:1465.
Recommendation: We recommend that the Board review its policies
and procedures with regard to political activities of employees and
make changes as needed to the policies and procedures.
The Jefferson Parish internal audit of JEDCO was authorized by Resolution
No. 117985, passed by the Jefferson Parish Council, on December 7, 2011, stating,
in pertinent part:8
. . . [T]his Council hereby requests the Internal Auditor to audit
in 2012 all agencies which do not fall under the jurisdiction of the
Jefferson Parish government but which regularly receive funds from
Jefferson Parish, to ascertain whether or not such funds are being used
as intended and in accordance with applicable parish and state laws.
. . . [T]he audits requested should include, but not be limited to,
reviews of credit card usage, payroll and payments to third parties.
. . . [T]he agencies to be reviewed in accordance with this
request include . . . JEDCO . . . .
In the Jefferson Parish internal audit report, the following was stated in a section
entitled “Executive Director’s Political Activity”:
FINDING: Postlethwaite & Netterville, in their JEDCO financial
statement audit for the year ended December 31, 2011 also noted that
“certain JEDCO employees . . . were engaged in political campaign
activities during the year ended December 31, 2010.” P&N noted “de
minimis” use of JEDCO‟s email system to engage in these activities.
Internal Audit noted in the documentation provided that the Executive
Director was involved in significant political activity related to the
election ballot.
B. Whoever violates any provision of this Section shall be fined not more
than one thousand dollars or be imprisoned, with or without hard labor, for not
more than two years, or both.
8
The Jefferson Parish Council was given control over, and responsibility for, the functions,
management, affairs, operation, and administration of JEDCO and the right to exercise such
powers as are necessary to govern such functions, management, affairs, operation, and
administration, by LSA-R.S. 34:2021(B).
14
2010 Jefferson Parish School Board Election. His political activities
included use of his position as Executive Director to organize the
solicitation of fundraising for candidates, endorse specific candidates,
and direct distribution of funds to candidates. It appears that he spent
a significant amount of public time in this political activity. He also
utilized the resources of his Executive Assistant in this political
activity.
RECOMMENDATION: The Louisiana Code of Governmental
Ethics, under R.S. 42:1116(B) states “No public servant shall use the
authority of his office or position[,] directly or indirectly, in a manner
intended to compel or coerce any person or other public servant to
engage in political activity. For the purposes of this Subsection,
political activity means an effort to support or oppose the election of a
candidate for political office in an election. This Subsection shall not
be construed to limit the authority authorized by law, statute,
ordinance, or legislative rule in carrying out official duties.”
The JEDCO Board of Commissioners should review the above
finding and determine if the Executive Director violated this code and
take action as deemed appropriate. This issue also should possibly be
presented to the Louisiana Board of Ethics for an opinion.
Because the hiring of, and providing records to, Postlethwaite & Netterville
by JEDCO was in compliance with state law (see LSA-R.S. 34:2022(B); LSA-R.S.
34:2023), which mandated the audit (see LSA-R.S. 34:2032(B)), the materials used
in the Postlethwaite & Netterville audit, including the emails at issue herein, were
used as a part of JEDCO‟s business, work, duties, or functions, which were
conducted, transacted, or performed “by or under the authority of the . . . laws of
this state . . . .” Further, since the Jefferson Parish internal audit was conducted
pursuant to Jefferson Parish Council Resolution No. 117985 (12/7/11), under its
authority to “control . . . the functions, management, affairs, operation, and
administration of JEDCO” pursuant to state law (see LSA-R.S. 34:2021(B)), and
included the use of the emails at issue herein, the emails were used as a part of the
Jefferson Parish government‟s work, duties, or functions, which were conducted,
transacted, or performed “by or under the authority of the . . . laws of this state . . .
or order of any public body . . . .”9 Therefore, we agree with the district court that
9
See also LSA-R.S. 44:4(6) (“This Chapter [the Public Records Law] shall not apply . . . [t]o
any records, writings, accounts, letters, letter books, photographs, or copies or memoranda
15
the definition of “public records,” contained in LSA-R.S. 44:1(A)(2)(a) of the
Public Records Law, clearly and unambiguously encompasses the emails at issue
in this case, and the law should be applied as written.
However, the plaintiff argued, and the appellate court agreed, that the use of
private email correspondence by a public entity should not turn the private
communication into a public record. On this point, the appellate court held that
“the determination of a public record is based on a content-driven analysis. Here,
the content of the e-mails had nothing to do with the business of JEDCO and are
not public records.” See Shane v. Parish of Jefferson, 150 So. 3d at 414. In this
statement of the law, the appellate court erred.
“Content” is not an element of the definition of “public records” set forth in
LSA-R.S. 44:1(A)(2)(a). In order to be a “public record,” pursuant to LSA-R.S.
44:1(A)(2)(a), the items listed therein need only have been “used, being in use, or
prepared, possessed, or retained for use in the conduct, transaction, or performance
of any business, transaction, work, duty, or function which was conducted,
transacted, or performed by or under the authority of the constitution or laws of
this state, or by or under the authority of any ordinance, regulation, mandate, or
order of any public body or concerning the receipt or payment of any money
received or paid by or under the authority of the constitution or the laws of this
state.” “Content” only becomes relevant after an item, listed in LSA-R.S.
44:1(A)(2)(a) and sought to be inspected as a public record, has been determined to
meet the definition of “public record” and if the issue is raised as to whether an
exception, exemption, or limitation, under the Louisiana Constitution or in the
Public Records Law (see LSA-R.S. 44:4.1(A)), supersedes the right of the public
to inspect the record. We reverse the appellate court decision insofar as it held that
thereof in the custody or control of the legislative auditor, or to the actual working papers of the
internal auditor of a municipality until the audit is complete, unless otherwise provided.”).
16
“the determination of a public record is based on a content-driven analysis.”
Moreover, the assertion that the use of private email correspondence by a
public entity should not turn the private communication into a public record
overlooks the fact that public entities must regularly use private information in the
entities‟ performance of their business, transactions, work, duties, or functions
(e.g., the Department of Revenue uses taxpayers‟ private financial data; the
Department of Education, colleges, and local school boards use private student
data; the Department of Children and Family Services must utilize private family
information; the Department of Health and Hospitals and local health units use
private patient medical records; etc.). Obviously, the legislature anticipated that
the records of private individuals would often be used by public entities in the
conduct of their respective business, work, duties, or functions, thus falling within
the broad definition of “public records”; otherwise, it would have been
unnecessary for the legislature to enact extensive statutory exceptions to the
public‟s right to inspect “public records.”10 Hence, we must conclude that the use
by a public entity of an individual‟s private information, data, or records may result
in that information, data, or records becoming a public record; notwithstanding,
such records may be subject to one of the many exceptions set forth either in the
Louisiana Constitution or the Public Records Law. See LSA-R.S. 44:4.1 (“[T]he
legislature declares that all exceptions, exemptions, and limitations to the laws
pertaining to public records shall be provided for in this Chapter or the
Constitution of Louisiana . . . . The legislature further recognizes that there exist
exceptions, exemptions, and limitations to the laws pertaining to public records
throughout the revised statutes and codes of this state. Therefore, the following
10
See LSA-R.S. 44:1(A)(2)(b), (B); LSA-R.S. 44:2; LSA-R.S. 44:3; LSA-R.S. 44:3.1; LSA-R.S.
44:3.2; LSA-R.S. 44:3.3; LSA-R.S. 44:4; LSA-R.S. 44:4.1(B), (C); LSA-R.S. 44:5; LSA-R.S.
44:10; LSA-R.S. 44:11; LSA-R.S. 44:12; LSA-R.S. 44:13; LSA-R.S. 44:15; LSA-R.S. 44:16;
LSA-R.S. 44:17; LSA-R.S. 44:18; LSA-R.S. 44:19; LSA-R.S. 44:20; LSA-R.S. 44:21; LSA-R.S.
44:21.1; LSA-R.S. 44:22; LSA-R.S. 44:23; LSA-R.S. 44:23.1.
17
exceptions, exemptions, and limitations are hereby continued in effect by
incorporation into this Chapter by citation . . . .”).
Since the plaintiff herein asserted that both his constitutional rights of
privacy and of association (pursuant to LSA-Const. Art. I, Sec. 5; LSA-Const. Art.
I, Sec. 7; and LSA-Const. Art. I, Sec. 9) would be violated by the release of the
email communications at issue, as the emails addressed only private political
matters, the district court ultimately balanced the plaintiff‟s constitutional interests
against the public‟s right to inspect public documents and concluded that all the
identifying information of Mr. Gunter‟s private email correspondents should be
redacted before release of the public records, citing Angelo Iafrate Construction,
L.L.C. v. State, Department of Transportation and Development, 03-0892 (La.
App. 1 Cir. 5/14/04), 879 So. 2d 250, writ denied, 04-1442 (La. 9/24/04), 882 So. 2d
1131 (wherein the redaction of the identifying information of the employees of a
private company working on a public contract was found sufficient to protect the
workers‟ rights when payroll information was sought under a public records
request). The appellate court ruled that redaction would be insufficient to protect
the plaintiff's privacy interests. We next examine the correctness of these rulings.
Right of Privacy and Right of Association
Article I, Section 5, of the Louisiana Constitution states: “Every person
shall be secure in his person, property, communications, houses, papers, and
effects against unreasonable searches, seizures, or invasions of privacy.”
The right to privacy in Louisiana has been described as the right to be “let
alone” and to be free from unnecessary public scrutiny. Capital City Press v.
East Baton Rouge Parish Metropolitan Council, 696 So. 2d at 566; DeSalvo v.
State, 624 So. 2d at 901. The right of privacy protects varied interests from
invasion; among the interests protected is the individual‟s right to be free from
unreasonable intrusion into his seclusion, solitude, or into his private affairs.
18
Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696
So. 2d at 566.
However, the right to privacy, like other personal rights, may be lost in
many ways, by express or implied waiver, consent, or by a course of conduct that
prevents its assertion. Id. The right is not absolute; it is qualified by the rights of
others. Id. The right of privacy is also limited by society‟s right to be informed
about legitimate subjects of public interest (e.g., individuals involved in civil
litigation may be compelled to give evidence, which tends to embarrass them or to
produce documents of a confidential nature, and a debtor‟s right of privacy is
subject to the creditor‟s right to take reasonable steps to collect his debt).
Copeland v. Copeland, 966 So. 2d at 1046; Capital City Press v. East Baton
Rouge Parish Metropolitan Council, 696 So. 2d at 566; Plaquemines Parish
Commission Council v. Delta Development Company, Inc., 472 So. 2d 560, 567
(La. 1985).
Article I, Section 5, of the Constitution applies only where one has a
reasonable expectation of privacy in the matter sought to be protected. The test for
determining whether one has a reasonable expectation of privacy, which is
constitutionally protected, is not only whether the person had an actual or
subjective expectation of privacy, but also whether that expectation is of a type that
society at large is prepared to recognize as being reasonable. Capital City Press
v. East Baton Rouge Parish Metropolitan Council, 696 So. 2d at 566.
The freedom of association protected by the First and Fourteenth
Amendments of the U.S. Constitution is also guaranteed by Article I, Sections 7
and 9 of the Louisiana Constitution of 1974. Louisiana Republican Party v.
Foster, 96-0314 (La. 5/21/96), 674 So. 2d 225, 229. The fundamental right of
freedom of association protected by these constitutional provisions includes the
19
right of persons to engage in partisan political organizations.11 Id. Because the
right of association would be hollow without a corollary right of self-governance,
there must be a right not only to form political associations but to organize and
direct them in the way that will make them most effective. Id. (citing Eu v. San
Francisco County Democratic Central Committee, 489 U.S. 214, 109 S. Ct.
1013, 103 L. Ed. 2d 271 (1989)).
It has long been recognized that the compelled disclosure of affiliation with
groups engaged in advocacy may constitute a restraint on freedom of association;
there is a vital relationship between freedom to associate and privacy in one‟s
associations. See National Association for Advancement of Colored People v.
State of Alabama ex rel. Patterson, 357 U.S. 449, 462, 78 S. Ct. 1163, 1171-72, 2
L. Ed. 2d 1488 (1958). Inviolability of privacy in group association may in many
circumstances be indispensable to the preservation of freedom of association,
particularly where a group espouses dissident beliefs. Id.
A significant encroachment upon associational freedom cannot be justified
upon a mere showing of a legitimate state interest; for even when pursuing a
legitimate interest, a state may not choose means that unnecessarily restrict
constitutionally protected liberty. Kusper v. Pontikes, 414 U.S. 51, 58-59, 94
S. Ct. 303, 308, 38 L. Ed. 2d 260 (1973). If the state has open to it a less drastic way
of satisfying its legitimate interests, it may not choose a legislative scheme that
broadly stifles the exercise of fundamental personal liberties. Id.
When competing constitutional interests are asserted, these interests must be
balanced on a case by case basis. See Copeland v. Copeland, 966 So. 2d at 1046-
47; Plaquemines Parish Commission Council v. Delta Development Company,
11
It is immaterial whether the beliefs sought to be advanced by association pertain to political,
economic, religious, or cultural matters; state action that may have the effect of curtailing the
freedom to associate is subject to the closest scrutiny. National Association for Advancement
of Colored People v. State of Alabama ex rel. Patterson, 357 U.S. 449, 460-61, 78 S. Ct. 1163,
1171, 2 L. Ed. 2d 1488 (1958).
20
Inc., 472 So. 2d at 568; Jaubert v. Crowley Post-Signal, Inc., 375 So. 2d 1386,
1389 (La. 1979).
Mr. Shane has raised his constitutional rights of privacy and association in
this suit to enjoin the release of email correspondence between himself and other
members of the private associations named herein. Mr. Shane contends that the
emails in question contain ideas, strategies, and opinions concerning political
advocacy, among members of the private associations, which the associations‟
members intended to be private. Mr. Shane asserts that the disclosure of the
association members‟ internal deliberations and planning would eliminate all
associational privacy and have a chilling effect.
These rights must be balanced against the right of the public to inspect
public records. The media-intervenors assert that the public has a right to know
about the activity of public employees who are suspected of wrongdoing. In this
case, the media-intervenors contend the emails evidence misuse of public office by
former JEDCO Executive Director Lucien Gunter, who they alleged was engaging
in unlawful political activity. Further, the media-intervenors assert that Mr. Gunter
“sent and received emails on his official government email account intended to
influence the 2010 Jefferson Parish School Board election,” despite Louisiana law
forbidding a public servant from “lending the imprimatur of his office „to support
or oppose the election of a candidate for political office,‟” citing LSA-R.S.
18:1465 and LSA-R.S. 42:1116(B).
Although LSA-R.S. 18:1465 prohibits public funds being “used to urge any
elector to vote for or against any candidate or proposition, or be appropriated to a
candidate or political organization,” no evidence was submitted at the hearing on
this matter to establish that any public funds had been expended as a result of the
de minimis email activity of JEDCO‟s employees, as referenced in the June 6,
2012 Postlethwaite & Netterville audit report. No JEDCO, Jefferson Parish, other
21
governmental employee, or auditor was called to testify, although the affidavits of
two JEDCO employees were submitted into evidence.
In his affidavit, former JEDCO Executive Director Lucien Gunter stated that
he was the executive director of JEDCO from December 2005 through December
2012, and, during that time, JEDCO never endorsed a candidate for public office or
made political contributions. He was previously the executive director for the
JBC, which is comprised of Jefferson Parish business executives and focuses on
strategies for the economic growth of the parish. While JBC does not engage in
endorsing or contributing to political candidates, Mr. Gunter stated that JBC does
encourage its members to take an active role in the Jefferson Parish elective
process. Mr. Gunter stated that he was also a member of the CBJ, a private
association of business owners, which endorses candidates for public office and
raises funds to publish its endorsements. Mr. Gunter stated that the emails at issue
consisted only of private correspondence with his close friends, met through his
more than twenty years of participation in the JBC or CBJ; and, the emails were in
no way related to JEDCO business. Mr. Gunter averred that, during his tenure at
JEDCO, there was no written policy prohibiting employees from using JEDCO
email for private matters, and his policy was that private use was permissible so
long as it was minimal and did not interfere with JEDCO responsibilities. Mr.
Gunter further declared that at no time did he use “JEDCO dollars” for any
political campaign expenditures.
The affidavit of Dottie Stephenson, Deputy Director of JEDCO, was also
submitted into evidence. Ms. Stephenson stated that she was JEDCO‟s records
custodian. Ms. Stephenson described JEDCO as an independent, but
complimentary, arm of the Jefferson Parish government, having as its main
objective the attraction, growth, and creation of new business opportunities in the
parish, through the retention and creation of quality jobs, entrepreneurship, and
22
investment in the parish. Ms. Stephenson further stated that in 2010, JEDCO did
not have a written policy prohibiting the use by employees of JEDCO email
accounts for personal or private business. She also averred that JEDCO does not
endorse, or make contributions to, political candidates or engage in political
fundraising.
A 2009 JEDCO employee handbook was also submitted into evidence and,
on the issue of agency communications systems use, stated in pertinent part:
Personal Telephone Use
It is important to keep our telephone lines free for client calls.
Although the occasional use of JEDCO‟s telephones for a personal
emergency may be necessary, routine personal calls are discouraged.
* * *
Electronic Mail and Voice Mail Monitoring
We recognize your need to be able to communicate efficiently with
fellow employees and clients. Therefore we have installed internal
electronic mail (e-mail) and voice mail systems to facilitate the
transmittal of business-related information within the organization and
with our clients
The e-mail and voice mail systems are intended for business use only.
The use of the organization‟s e-mail and/or voice mail systems to
solicit fellow employees or distribute non job-related information to
fellow employees is strictly prohibited.
* * *
For business purposes, management reserves the right to enter, search
and/or monitor the organization‟s private e-mail and voice mail
systems and the files/transmission of any employee without advance
notice and consistent with applicable state and federal laws.
Employees should expect that communications that they send and
receive by the organization’s private e-mail and voice mail systems
will be disclosed to management. Employees should not assume that
communications that they send and receive by JEDCO’s private e-
mail and voice mail systems are private or confidential. [Emphasis
added.]
Based on this written policy, JEDCO employees were informed that private
use of JEDCO‟s email system was limited; however, there was no express
statement within the JEDCO employee handbook that all private use was
23
prohibited. Further, even though the handbook language informed employees that
email could be reviewed by JEDCO “management,” there was no indication that
email would be subject to outside or public inspection.
JEDCO Board of Commissioners Chairman James Garvey‟s written
response to the Jefferson Parish audit report was admitted into evidence. In that
response, Mr. Garvey stated that “given the fact that JEDCO receives anywhere
from 175,000 to 200,000 emails per year, the email activity that occurred should be
considered to be de minimis.” Mr. Garvey also stated that Mr. Gunter‟s
participation in the email correspondence was “as a „private citizen‟ and/or as an
advisor to several private business entities and coalitions that had formed to push
for school board reforms and not from the position or authority of his office (i.e.,
his position as JEDCO Executive Director).” Mr. Garvey further indicated that,
with respect to Mr. Gunter‟s administrative assistant, Mr. Gunter did ask her to
read or draft responses to his private email “on occasion,” believing that her
performing “a de minimis amount of personal activities would not be a problem,”
and Mr. Gunter did not “coerce or threaten” his administrative assistant to perform
the work or to become actively involved in any political campaign.
This court has conducted an in camera inspection of the specified emails,
which were submitted into evidence in the district court as a sealed exhibit. Of the
104 emails in evidence, sent via the JEDCO email system between June 21, 2010
and October 12, 2010, 53 were sent by JEDCO employees: 46 emails were sent by
Lucien Gunter, including several emails to Penny Weeks, Mr. Gunter‟s
administrative assistant, asking her to print out attached documents, and the
remainder to his private association co-members; 5 emails were sent by Ms. Weeks
to forward Mr. Gunter‟s emails to others; and 2 emails were sent by JEDCO
marketing employees to forward newspaper articles to Mr. Gunter. The remaining
51 emails were received by Mr. Gunter from his private association co-members.
24
Certainly 104 out of hundreds of thousands of emails sent each year within the
JEDCO email system could be considered de minimis. Further, neither the number
of times that Mr. Gunter had his administrative assistant, Ms. Weeks, forward or
print out an email (a total of 7 times), nor the tenor of the email he sent to Ms.
Weeks could be considered compulsory or coercive, within the meaning of LSA-
R.S. 42:1116(B).12
Our review also reveals that the content of the emails consisted of the
discussion of private political matters of the private associations, which had
nothing to do with JEDCO operations. Therefore, we find no manifest error in the
district court‟s factual findings to that effect or the district court‟s finding that the
plaintiff considered his communications with his private association co-members
to have been private.
Nevertheless, we conclude that upon balancing the public‟s right to inspect
the emails at issue against the plaintiff‟s constitutional rights of freedom to
associate and privacy in one‟s associations, we conclude, as did the district court,
that, under the particular facts of this case, the latter may be adequately protected
by redaction. Accordingly, we conclude that the email at issue may be disclosed in
connection with the media-intervenors‟ public records request in this case, subject
to redaction as ordered by the district court.13
Custodian for Purposes of the Public Records Law
The final issue to be resolved is whether both Jefferson Parish and JEDCO
12
See Tebbe v. Louisiana Commission on Ethics for Public Employees, 540 So. 2d 270 (La.
1989) (reversing a decision of the Commission on Ethics for Public Employees, which had found
a violation of the state ethics code arising out of a vocational school director‟s use of a
subordinate instructor and his secretary to type papers needed for his master‟s degree).
13
We note that the proposed redactions contained in “Jefferson Parish Exhibit „A‟ with
redactions” were insufficient and not in compliance with the district court directions, which we
uphold herein, stating that the redactions should encompass the identities of all persons
reasonably believed to have been private citizens, and not public employees, at the time the
emails were written, and should include names, addresses, email addresses, phone numbers, and
places of employment, within the sender, recipient, address, and body sections of the emails, as
well as within any attachments to the emails.
25
are custodians of the records at issue in this case. Both Jefferson Parish and the
media contend that Jefferson Parish is a “custodian,” which must respond to a
public records request seeking access to the email records, for purposes of the
Public Records Law. Contrarily, Mr. Shane and JEDCO contend, in essence, that
since the email records were created by a JEDCO employee JEDCO is the Public
Records Law “custodian” of the records.
The word “custodian” is defined by LSA-R.S. 44:1 as “the public official or
head of any public body having custody or control of a public record, or a
representative specifically authorized by him to respond to requests to inspect any
such public records.” Further, LSA-R.S. 44:31(A) states: “Providing access to
public records is a responsibility and duty of the appointive or elective office of a
custodian and his employees.” (Emphasis added.)
While the word “custody” may incorporate both an aspect of physical
possession and of legal control,14 since LSA-R.S. 44:1 explicitly defines a public
records custodian as a public official who has “custody” or “control” of a public
record, it is clear that “custody” under this statute may be a mere physical
possession, for purposes of determining who may be a custodian of a public
record.15 This conclusion is supported by the fact that it is not only original
records that meet the definition of “public records,” rather, pursuant to LSA-R.S.
44:1(A)(2)(a), “public records” also include “all copies, duplicates, photographs,
including microfilm, or other reproductions.”
Our construction of public records custodian - to include not only the
original custodian, but also subsequent public officials who have obtained custody
14
See Black‟s Law Dictionary 347 (5th ed. 1979) (including within the definition of “custody”
the “the idea of the thing being within the immediate personal care and control of the person to
whose custody it is subjected . . .”).
15
We are obliged to apply the definition of “custodian” as written by the Louisiana Legislature;
if the legislature had intended to restrict the public‟s right of access to public documents only
through a public official who had both custody and control, the legislature would have so stated
in LSA-R.S. 44:1.
26
of either the original public record or a copy, duplicate, photograph, microfilm, or
other reproduction of the public record - is consistent with the legislative goal of
the Public Records Law, as stated in Landis v. Moreau, 779 So. 2d at 694-95, to
resolve all doubt in favor of the public‟s expansive and unrestricted right to access
to public records. Consequently, since both JEDCO and Jefferson Parish have
custody of the public records at issue in this case, both agencies meet the definition
of “custodian” with respect to these records.16
16
We do not find the cited case of State ex rel. Wogan v. Clements, 192 So. 126 (La. App. Orl.
Cir. 1939), affirmed, 194 La. 812, 195 So. 1 (1940), to be authoritative, as it merely held that the
government auditor in that case had not taken custody or possession of the public records at
issue. In State ex rel. Wogan, the auditor had accessed the public records within the office of
the Commissioner of Conservation (no records were removed from the Conservation department
office and the Conservation department employees continued to have access to the records when
needed); therefore, only the Commissioner of Conservation was found to have had custody of the
records for purposes of a public records request.
27
CONCLUSION
For these reasons, we conclude that the LSA-R.S. 44:1(A)(2)(a) definition of
“public records,” for purposes of the Public Records Law, may encompass email
sent on a public employee‟s government email system, even though the content of
the email ostensibly related only to private matters, when that email has been used
in the performance of any work, duty, or function of a public body, under the
authority of state or local law, unless an exception, exemption, or limitation, under
the Louisiana Constitution or in the Public Records Law applies to prevent public
disclosure of the record. Further, a “custodian” of a public record may be a public
official having either custody (i.e., physical possession) or control of a public
record.
DECREE
Accordingly, we reverse the appellate court decision, and we reinstate the
district court decision. We remand this matter to the district court for further
proceedings consistent with the foregoing.
REVERSED AND REMANDED.
28
12/08/15
SUPREME COURT OF LOUISIANA
NO. 2014-C-2225
WILLIAM HENRY SHANE
VERSUS
THE PARISH OF JEFFERSON, STATE OF LOUISIANA,
AND THE JEFFERSON PARISH ECONOMIC
DEVELOPMENT COMMISSION
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIFTH CIRCUIT, PARISH OF JEFFERSON
Johnson, C.J., additionally concurs and assigns reasons.
I agree with the majority opinion in its conclusion that the e-mails in
question are public records within the meaning of the Louisiana Public Records
Act, and should be released to the public, once redacted. A brief discussion of
public records law helps us to further understand this issue. E-mail
communications are treated in the same manner as paper records under the public
records law in Louisiana. See City of Pineville v. Aymond, 2008-0040 (La. App. 3
Cir. 4/30/08), 982 So. 2d 292. The Louisiana Attorney General has opined that “e-
mails of a purely personal nature received or transmitted by a public employee
which have no relation to any function of a public office are not „public records‟ as
described by the Public Records Act.” La. Att‟y Gen. Op. No. 10-0272 (April 13,
2011). Jurisprudence in various states across the country is consistent that personal
e-mails which are not related to a public official‟s work are not subject to the
Public Records law. According to the Florida Supreme Court, personal e-mail
communications do not fall within the definition of public records subject to
disclosure by virtue of their placement on a government owned computer system.
State v. City of Clearwater, 863 So. 2d 149, 154 (Fla. 2003). Likewise, the
Arizona Supreme Court has held that the state‟s inclusion of e-mail in its open
records law does not encompass documents of a purely private or personal nature.
Instead, “only those documents having a „substantial nexus‟ with a government
agency‟s activities qualify as public records.” Griffis v. Pinal Cnty, 215 Ariz. 1, 4,
156 P.3d 418, 421 (2007). Under that analysis, e-mail of a personal nature, such as
grocery lists or e-mail messages between family members regarding dinner plans,
is not subject to disclosure under the public records law.
It is undisputed that Mr. Gunter‟s e-mails concerned his personal fundraising
efforts for candidates involved in the 2010 Jefferson Parish School Board election.
E-mails of this nature have no reasonable connection to the business of JEDCO,
and would not reasonably be considered public records of JEDCO.
Notwithstanding this, the majority opinion correctly reasons that Mr. Gunter‟s e-
mails were “used to perform a function conducted by order of a public body” in
accordance with La. Rev. Stat. Ann. 44:1(A)(2)(a). Namely, the records were used
by Jefferson Parish to conduct its governmental audit of JEDCO. As no exception
or exemption exists within the Public Records Act to shield the e-mails from
disclosure, the majority opinion then appropriately considers Plaintiff‟s First
Amendment privacy and associational interests, which he argues should prevent
the e-mails from being disclosed.
On the contrary, I believe the public‟s right to discover what public
employees are doing during the workday, in the workplace, using resources
procured by public funds, is paramount and trumps Plaintiff‟s individual interests
in this case. While Mr. Shane, a private citizen, may reasonably assert an
expectation of privacy in e-mail communications expressing his personal political
affiliations, Mr. Gunter, by virtue of his position as a public official, may not. The
evidence in the record is clear that Mr. Gunter improperly used his position and
public resources to engage in political activity which he had reason to know was
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prohibited. In fact, Mr. Gunter resigned from his post as Executive Director of
JEDCO as a result of this unethical conduct. I believe that the redaction ordered
by the district court strikes the appropriate balance between Mr. Shane‟s privacy
and associational interests and the public‟s compelling interest in preserving
transparent, ethical government dealings.
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