‘Private' Emails on Government Computers and the Public Records Act: Phelps Dunbar Attorneys Weigh In

December 28, 2015

A recent unanimous Louisiana Supreme Court decision held that a public official’s private emails sent on his public agency’s computer are subject to disclosure under the Louisiana Public Records Act when those emails have been used in audits of the public agency.

The plaintiff in Shane v. Parish of Jefferson, a private citizen, exchanged emails related to Jefferson Parish politics with the executive director of JEDCO, an agency of Jefferson Parish government. The executive director used his office computer and email system for the communications. That might have been the end of the story, except for the annual external audit of JEDCO’s operations. The auditors found there had been instances of improper use of JEDCO’s email system by JEDCO employees to engage in “political campaign activities.” A Jefferson Parish internal audit of JEDCO concluded that the executive director had spent “a significant amount of public time” engaged in allegedly improper political activities.

The Times-Picayune filed a public records request with JEDCO seeking the emails the auditors had reviewed. JEDCO rejected the request, asserting that the emails had “no relation to the public business of JEDCO” and were exempt from disclosure under Louisiana’s constitutional right to privacy. The Times-Picayune then requested the emails from Jefferson Parish, which agreed to produce them.

The plaintiff filed suit seeking to prevent the disclosure of the emails. The District Court concluded that the emails were public records and that the plaintiff’s privacy interests required that Jefferson Parish redact identifying information, which should include the names, addresses, email addresses, phone numbers and places of employment of all private citizens, before releasing the emails. Information about JEDCO employees, elected officials and candidates for public office were not required to be redacted. The Court of Appeal reversed that ruling, holding that the emails were not public records because they were “purely” private.

The Supreme Court reversed the Court of Appeal’s decision and reinstated the District Court’s ruling.

The Supreme Court concluded that the emails in this case fell within the “broad definition of ‘public records” because they “were used in [JEDCO’s] regular business, transactions, work, duties or functions” in that the emails were used to perform the audits of JEDCO’s operations.

The Court then considered whether any exceptions to the Public Records Law applied, focusing on the constitutional rights of privacy and association.

The Court found 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."

Finally, the Supreme Court ruled on whether only JEDCO, or also Jefferson Parish, was a custodian of the emails as only custodians are subject to public records requests. The Public Records Law defines “custodian” as the public official or head of any public body having custody or control of a public record. The Court concluded that “it is clear that ‘custody’ under this statute may be a mere physical possession.” Thus, Jefferson Parish, which had custody but not necessarily control of the emails, was, nonetheless, also a custodian of the emails.

Takeaways: Any public agency with possession of a public record is a custodian of that record who may be required to produce the record in response to a public records request.  If an agency has either custody or control of a record, that agency’s head is a custodian of that record.

Moreover, the Court’s holding that email correspondence with private individuals about private matters, even constitutionally protected matters, are public records if they also are used in a public function, is a broad ruling. Most courts in other states have ruled that emails written by public employees on public email systems are, nevertheless, not public records if their content is private. The Louisiana Supreme Court rejected that interpretation of the Public Records Act.

Finally, another Supreme Court decision reaffirming the broad scope of the Public Records Law is a positive development.

Mary Ellen Roy handles a range of commercial litigation and focuses in the areas of media and intellectual property law. She is a partner with Phelps Dunbar LLP in New Orleans. Dan Zimmerman is an attorney in Phelps Dunbar’s New Orleans office who focuses on First Amendment, civil rights and appellate law issues.