Could a Louisiana public-records requester inspect board members' privately owned computers to find agency emails?

Plain-English summary

A requester sought access to the personal or business computers of members and employees of Louisiana's private investigator licensing board to copy possible board-related email and documents. The board's counsel said members bought and maintained their computers privately and did not keep or use them in board offices. On those facts, the Attorney General said a records request did not permit warrantless monitoring of members' private equipment and communications.

The opinion made a separate point about the records themselves. If members actually conducted board business by email, those communications could become public records subject to production. The AG distinguished that possibility from blanket access to the privately owned computers and discussed a warrant based on probable cause for monitoring.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a records request give access to an entire board member's private computer? The AG said no on the facts presented. He considered warrantless monitoring of the private equipment and messages an invasion of constitutional privacy.

Could email sent on a private computer still be a public record?
Yes. The opinion said electronic communications used to conduct actual board business would fall within the Public Records Act.

Did the AG decide the requested messages were public board records?
No. Based on the facts supplied, he said the messages in question were not public information, while explaining that actual board-business communications would be different.

Background and statutory framework

The opinion considered the public-records definition in Louisiana Revised Statutes 44:1 and the protection of property and communications in Article I, section 5 of the Louisiana Constitution. Its answer concerned the privately owned computers described by the board and did not treat every message on such a device the same way.

Citations and references

• Louisiana Revised Statutes 44:1
• Article I, section 5

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/01-0155

Original opinion text

June 12, 2001
OPINION NO. 01-155

Camille F. Gravel
90 - C Monitoring and/or electronic recording of
Board members' private computer
General Counsel
equipment under a public records request
Louisiana State Board of Private Investigator Examiners would violate individual board members right to privacy.
2051 Silverside Drive
Baton Rouge, LA 70808

Dear Mr. Gravel:

I am in receipt of your recent request seeking an opinion from our office. You state in your letter that the State Board of Private Investigator Examiners has received a request under the Public Records Act to permit access to any personal or business computer, wherever situated, of any individual Board member or any Board employee. You advise that the purpose of this request is to allow copying of any electronic mail communications or other documents, which may pertain to Board business. You further advise that these computers are actually the private property of each individual Board member. These computers were purchased by the individual Board members and are maintained by individual members. You state in your request that these computers are not now, nor have they ever been situated in Board offices nor have they been utilized, supervised, or controlled by the Board, its Executive Director, or by its other employees in the conduct of Board affairs.

Our analysis of this issue begins with the question of whether such communications are public or private. Louisiana Revised Statutes 44:1 says, [P]erformance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under 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 under the authority of the constitution or the laws of this state are ‘public records’.

Private communications are defined as those fairly made by a person in the discharge of some private or public duty, legal or moral. Richardson v. Cooke, 56 So.2d 318 at 320 (1911) (emphasis added). Obviously, the courts do not consider the nature of the duty involved to be dispositive in delineating between public and private communications. Under our analysis, although some public business may be taking place via these communications, they are generally considered private under jurisprudence.

Furthermore, there appears to be a constitutional bar to monitoring these electronic communications. Article I, section 5 of the Louisiana Constitution of 1974 provides,

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Camille F. Gravel
OPINION NUMBER 01-155
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"Every person shall be secure in his", … "property", (and), "communications",… "against unreasonable searches, seizures, or invasions of privacy."

The State Supreme Court has analogized electronic interception of private communications to searching an individual’s house or seizing his papers and effects. State v. Reeves, 427 So.2d 403 at 404 (1983). An individual’s house, papers, and effects are all protected under both the state and federal constitutions.

The fact that the state constitution extends protections of the federal constitution to specifically include communications only reinforces the position that monitoring electronic messages would be held unconstitutional. In fact, without more, such a practice would not only invade privacy rights with respect to communications, it would also invade the privacy rights of the owner(s) of the computers which were monitored under the property provision of Article I, section 5 of our constitution.

Where, however, communications rise to a level where Board members are actually conducting board business through electronic means, such communication would be considered public records, and as such, would fall within reach of the Public Records Act. Further, monitoring of such electronic communications could be considered constitutional in the presence of a warrant issued on probable cause indicating that Board business is being conducted by such communication.

In conclusion, allowing warrantless monitoring of electronic communications of individual Board members would violate Article I, section 5 of the Louisiana Constitution of 1974, as well as a consistent line of Louisiana jurisprudence dating back as far as 1911. All such communications by individual Board members or employees are private and privileged. If Board members or employees are actually conducting official business through electronic communications, these private communications then become part of the public record and are subject to production under the Public Records Act. Based on the information provided, the electronic messages in question are not public information under state law. Should you have any further questions, please do not hesitate to contact our office.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BY: Charles H. Braud, Jr.
Assistant Attorney General

RPI:CHB, Jr.,mjb

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Camille F. Gravel
OPINION NUMBER 01-155
Page - 3 -

Syllabus

90 - C Monitoring and/or electronic recording of Board members' private computer equipment under a public records request would violate individual board members right to privacy.

Camille F. Gravel
General Counsel
Louisiana State Board of Private Investigator Examiners 2051 Silverside Drive Baton Rouge, LA 70808

Date Received:
Date Released: June 12, 2001

CHARLES H. BRAUD, JR.
Assistant Attorney General