WILLIAM HENRY SHANE v. THE PARISH OF JEFFERSON, STATE OF LOUISIANA, AND THE JEFFERSON PARISH ECONOMIC DEVELOPMENT COMMISSION
2014-C-2225
Supreme Court of Louisiana
December 8, 2015
NEWS RELEASE #063; Parish of Jefferson
FOR IMMEDIATE NEWS RELEASE
FROM: CLERK OF SUPREME COURT OF LOUISIANA
Thе Opinions handed down on the 8th day of December, 2015, are as follows:
BY HUGHES, J.:
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.
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,
*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 еmployees” 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 report focused on Mr. Gunter‘s “significant political activity related to the 2010 Jefferson Parish School Board Election”
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:
- 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.
- 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 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
Mr. Broach again modified his public records request, on November 21, 2012, to ask that the emails bе 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
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
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
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 tо 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 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 . . . .”
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,
Because Mr. Shane is a “person” “whose rights . . . are affected by a statute” (i.e.,
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 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, whiсh 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.
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.
The legislature, by enacting the “Public Records Law” (
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.
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 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
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 сonduct, 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 body4 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
When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied аs written and no further interpretation may be made in search of the intent of the legislature.
Louisiana‘s Public Records Law contains a broad definition of “public 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
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
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 Financiаl 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. 18:14657 provides that 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.
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 thе 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
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 appeаrs 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
the definition of “public records,” contained in
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 еlement of the definition of “public records” set forth in
Moreover, the assertion that the use of private email correspondence by a public entity should not turn the private communication
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
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
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 affаirs. 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
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, 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
Although
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,
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, entreprеneurship, and 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-relatеd 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 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 repоrt 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. 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
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
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 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
While the word “custody” may incorporate both an aspect of physical possession and of legal control,14 since
This conclusion is supported by the fact that it is not only original records that meet the definition of “public records,” rather, pursuant to
Our construction of public records custodian - to include not only the original custodian, but also subsequent public officials who have obtained custody 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
CONCLUSION
For these reasons, we conclude that the
DECREE
Aсcordingly, 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.
WILLIAM HENRY SHANE VERSUS THE PARISH OF JEFFERSON, STATE OF LOUISIANA, AND THE JEFFERSON PARISH ECONOMIC DEVELOPMENT COMMISSION
NO. 2014-C-2225
SUPREME COURT OF LOUISIANA
12/08/15
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 сommunications do not fall within the definition of public records subject to disclosure
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
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 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 associatiоnal interests and the public‘s compelling interest in preserving transparent, ethical government dealings.
Notes
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 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.