Could LSU keep fraud-investigation interviews out of public records by conducting them in executive session?

Plain-English summary

LSU asked whether its investigative and audit procedures aimed at suspected fraud could be kept from public access. In Opinion 03-0124, the Attorney General said the LSU board or a committee could investigate alleged misconduct in a properly convened executive session. Under the statutory exception he cited, the session's proceedings would not qualify as public records.

The AG emphasized the requirements for convening an executive session: advance notice of the open meeting, an affirmative vote of two-thirds of members present, a recorded reason and votes, and no final or binding action during the closed portion. Information collected outside an executive session could become a public record. The letter discussed a court decision rejecting a blanket privacy claim for an investigative report where no statutory exemption applied, while recognizing that truly private details might require separate consideration.

Currency note

This opinion was issued in 2003. 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.

What the opinion meant at issuance

LSU board and committees

The opinion permitted closed interviews about alleged misconduct when the board followed the then-existing executive-session procedure. It did not treat an investigation as exempt merely because LSU called it confidential.

Records officers and requesters

The AG distinguished proceedings held during a valid executive session from information gathered outside one. For the latter, public access depended on a specific exemption or other legally recognized privacy ground, not the investigative label alone.

Common questions

Q: Could LSU interview witnesses in executive session about alleged fraud? A: The AG said yes for the board or one of its committees, if the statutory notice, vote, and purpose requirements were met.

Q: Did every document in a fraud investigation become confidential? A: No. The opinion said material collected outside an executive session could become a public record and emphasized narrow reading of access exceptions.

Q: Could LSU take a final decision behind closed doors? A: The statute quoted by the AG barred final or binding action during the executive session.

Background and statutory framework

The opinion read the public-records exception list in LSA R.S. 44:4.1 together with LSA R.S. 42:6 and 42:6.1A(4), which then allowed executive sessions for investigative proceedings about alleged misconduct. It described cases on concurrent closed interviews and public access to investigative reports. The OCR extract provides the opinion number but no legible exact issue date.

Citations and references

Authorities in the opinion: LSA R.S. 44:4.1; LSA R.S. 42:6.1A(4); LSA R.S. 42:6. The letter also cited Parent-Community Alliance for Quality Education, Inc. v. Orleans Parish School Board and Hilbun v. State of Louisiana Through Division of Administration.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0124

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

DEPARTMENT OF JUSTICE
One American Place
301 Main Street, Suite 600
CIVIl. DIVISION
P.O. Box 94005
BATON ROUGE
TEL.: (225) 342-7013
FAX: (225) 342-2090
RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAL

oPIN~’N~J~ 03-0124

61 - LAWS - General
73-A - NOTICE REQUIREMENTS
90-B-4 - PUBLIC MEETINGS
P. Raymond Lamonica
90-C - PUBLIC RECORDS
J.B. Nachman Professor of Law, and 109 - STATE - Employees & Departments General Counsel, LSU System
LSU may conduct investigations of alleged fraudulent
3810 West Lakeshore Drive
conduct in an executive session.
Baton Rouge, LA 70808

Dear Professor Lamonica:

You have requested an opinion from our office on whether investigative/audit procedures performed by the LSU System in an effort to reduce fraudulent conduct is an exception to the accessibility of public records provided for in the Louisiana Constitution, Article 12 § 3. The constitutional provision should be applied liberally, allowing denial of such access only if the exception claimed falls under the exceptions specifically enumerated in LSA R.S. 44:4.1.

LSA R.S. 44:4.1A requires that any exception to the laws pertaining to the public records be specifically listed to have effect. LSA R.S. 44:4.1B(25) cites LSA R.S. 42:6.1 as one of the "exceptions, exemptions, and limitations to the laws pertaining to public records."

LSA R.S. 42:6.1A(4), as you have mentioned in your opinion request, would allow the LSU Board or a committee or subcommittee of the Board to conduct an investigation in an executive session. If the executive session involved complies with the requirements of LSA R.S. 42:6, the proceedings can be excluded from the public record. LSA R.S.
42:6 and LSA R.S. 42:6.1A(4) state:

42:6
A public body may hold executive sessions upon an affirmative vote, taken at an open meeting for which notice has been given pursuant to R.S. 42:7, of two-thirds of its constituent members present. An executive session shall be limited to matters allowed to be exempted from discussion at open meetings by R.S. 42:6.1; however, no final or binding action shall be taken during an executive session. The vote of each member on the question of holding such an executive session and the reason for holding such an executive session shall be recorded and entered into the minutes of the meeting. Nothing in this Section of R.S. 42:6.1 shall be construed to require that any meeting be closed to the public, nor shall any executive session be used as a subterfuge to defeat the purposes of R.S. 42:4.1 through 42:8.

Page 2

P. Raymond Lamonica
Opinion Number 03-0124
Page - 2 -

42:6.1A

A public body may hold an executive session pursuant to R.S. 42:6 for one or more of the following reasons: (4) Investigative proceedings regarding allegations of misconduct.

If the LSU Board or one of its committees proceeds with the investigations through the use of executive sessions, Parent-Community Alliance for Quality Education, Inc. v. Orleans Parish School Board, 385 So.2d 33, would provide some practical guidelines. The court allowed extensive interviews to take place in multiple concurrent executive sessions. They noted that the "law as amended simply requires an affirmative vote of two-thirds of the constituent members present at an open meeting, for which notice has been given, to authorize executive sessions." (at page 39). As it existed prior to 1976, the public body was required to announce the specified time the recess would end.

If the investigative information is collected outside of an executive session, it could become public record. The constitutional provision is construed liberally, in favor of the public. In Hilbun v. State of Louisiana Through Division of Administration, 745 So.2d 1189, the court stated the investigative reports relating to Hilbun’s alleged inappropriate behavior were not subject to any specific exemption as established in LSA R.S. 44:4.1 above. Because there was no statutory exemption, the court could have only denied the public’s access to such records if it had been shown there was a reasonable expectation of privacy. The court in Hilbun held that there was no reasonable expectation of privacy, neither actual nor one that society is prepared to recognize as reasonable. In dicta, the court stated "Nevertheless, any private matters contained in the investigative report may not be disclosable if disclosure would expose the employee to public disgrace or would constitute an unreasonable invasion into a person’s seclusion, solitude, or private life." (at page 1190).

Based on the statutes and cases referenced above, it is the opinion of this office that the LSU Board or one of its committees or subcommittees could conduct interviews to investigate alleged fraudulent conduct in an executive session. As such, records of the proceedings would not qualify as public records. I believe the above should sufficiently answer your request. Should you need additional information please do not hesitate to contact this office.

Yours very truly,

RICHARD P. IEYOUB
ATTORNEY GEc~NERAi~.

Assistant Attorney General

RPI/CHB;jnp