Are personal political emails sent from a Louisiana public employee's work account public records?

Plain-English summary

A requester sought politically themed emails sent by the Houma-Terrebonne Housing Authority's executive director from a public account. In this October 2013 opinion, the AG concluded that the small group of purely personal emails described by the authority was not subject to production: the messages had no connection to its functions, there was no evidence of illegal activity, and the authority had made no finding that they warranted discipline.

The opinion rejected any blanket rule that private messages on a public account are exempt. A custodian had to analyze each record's connection to public business. Evidence of illegal activity or a disciplinary finding could change that analysis. Even when a message qualified as a public record, the custodian would still have to consider any disclosure exception.

Currency note

This opinion was issued in 2013. 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.

Historical summary

Records custodians

The AG called for a content-based review of whether an email was used or retained in public business. It treated account location alone as insufficient. Its conclusion for the particular messages depended on their lack of connection to authority work and the absence of evidence of illegality or a disciplinary finding.

Records requesters and public employees

The opinion did not give all personal work-account emails a categorical shield. It said different facts could make a message a public record, after which a separate disclosure-exception analysis would still be necessary.

Common questions

Does using a government email address make every message public?

No. The AG said the Public Records Act's definition required a connection to public business or the public body's function, not mere presence in a public account.

Were the executive director's political emails released in this case?

The opinion concluded that the particular purely personal emails described were not subject to production on the stated facts. Its answer was limited by the absence of a work connection, evidence of illegality, and a disciplinary finding.

Could a personal email become a public record if it showed misconduct?

The AG said evidence of illegal activity or a disciplinary finding would matter to the custodian's content-based analysis and could change the result. It did not say that such a finding would automatically require production.

Background and statutory framework

The request covered politically themed emails sent on ten dates. The authority's lawyer identified no more than six potentially responsive personal emails and asked whether an earlier AG position still stood. The opinion applied La. R.S. 44:1's definition of public record, which connected covered materials to public work and functions, while stressing the Act's general access principle.

Citations

• La. R.S. 44:1: public-record definition and statutory framework.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/13-0141

Original opinion text

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DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE
70804-9005
JAMES D. "BUDDY" CALDWEll
ATIORNEY GENERAL

October 15, 2013
OPINION 13-0141

90 - C - PUBLIC RECORDS
Mr. Jacob D. Dagate
Special Assistant District Attorney
La. R.S. 44:1 et seq.
Thirty-Second Judicial District
Personal e-mails sent on a pUblic e-mail account are not "pUblic
7856 Main Street
records" subject to production under the Public Records Act when the
records have no relation to the function of the public body, there is no
Courthouse Annex Suite 220
evidence of illegal activity, and there has been no finding of the public
Houma, Louisiana 70360
body that disciplinary action is appropriate based on the records at
issue.

Dear Mr. Dagate:

Our office received a request from you for an opinion concerning a public records request received by the Houma-Terrebonne Housing Authority ("HTHA"). Your letter states that a request was received by the HTHA seeking a copy of any and all e-mails which are political in nature sent by HTHA's Executive Director on ten specific dates.
The request" specifies that, as used in the request, "political in nature" refers to any and all documents that: (1) refer to a political party or candidate for office; (2) refer to a political party or elected official; (3) refer to any issue in controversy that has been written about in the media; and (4) are meant to advocate for a particular party or advocate against a particular party or candidate. 1

After reviewing potentially responsive e-mails to the request, it was determined that six or fewer of the e-mails that could be considered "political in nature," as defined by the requestor, were personal e-mails that had no relation to the function or business of the HTHA. Relying on La. Atty. Gen. Op. No. 10-0272 and the definition of "public record" provided by La. R.S. 44:1 (A)(2)(a), you, as the attorney for HTHA, concluded that personal e-mails transmitted by the Executive Director which have no relation to any function or business of the HTHA are not "public records" as defined by the Public Records Act. Your request letter specifically asks whether the Office of the Attorney General maintains the position taken in La. Atty. Gen. Op. No. 10-0272 that e-mails of a

1 The requestor, in follow up correspondence objecting to the HTHA's response to his request, refers to La.Const. art. X, § 9, which prohibits a civil service employee from participating or engaging in political activity, except to exercise his rights as a citizen to express an opinion privately, to serve as a commissioner at the polls, and to cast his vote as he desires. See also La. R.S. 33:2429. We note that La.Const. art. X, § 9(C) defines "political activity" as "an effort to support or oppose the election of a candidate for political office or to support a particular political party in an election. The support of issues involving bond indebtedness, tax referenda, or constitutional amendments shall not be prohibited." Clearly, the definition of "political activity" provided by the requestor to the HTHA is broader than the definition of "political activity" under La.Const. art. X, § 9.

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OPINION 13-0141
Mr. Jacob D. Dagate
Page 2

purely personal nature sent on a public e-mail account and having no relation to public business are not public records subject to disclosure under La. R.S. 44:1 (A)(2)(a).

The right of access to public information is guaranteed by La.Const. art. XII, § 3, which provides, "[n]o person shall be denied the right to ... examine public documents, except in cases established by law." The Public Records Act, which can be found at La. R.S. 44:1 et seq., was enacted by the 'Louisiana Legislature to protect and define the constitutional right of access to public documents. The Louisiana Supreme Court has instructed liberal construction of the Public Records Act, with any doubt being resolved in favor of access. 2 Unless an exception to the Public Records Act is applicable, a custodian has the responsibility and duty to provide access to public records, and the public has a right to copy, inspect or reproduce public records. 3 .

A "public record" is defined by La. R.S. 44:1 (A)(2)(a) as including:

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, transa.ction, 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 ... except as otherwise provided in this Chapter or the Constitution of Louisiana.

As our office stated in La. La. Atty. Gen. Op. No.1 0-0272,

[a] record's mere existence in a public office does not automatically make such document a "public record." It is the opinion of this office that the definition of "public records" requires a content-driven analysis for a connection between the record and the conduct of public business or the functioning of a public body.

The opinion then references La. Atty. Gen. Op. No 79-242, which concluded that the statute defining a "public record," La. R.S. 44:1, was not intended to include everything

2 Title Research Corp. v. Rausch, 450 SO.2d 933 (La.1984); Landis v. Moreau, 00-1157 (La. 2/21/01), 779 So.2d 691. 3 La. R.S. 44:31.

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OPINION 13-0141
Mr. Jacob D. Dagate
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which any public official may happen to reduce to writing and includes 0nly those 1I

writings which are used in the performance of the functions of the public body.,,4

La. Atty. Gen. Op. NO.1 0-0272 is not intended to stand for the blanket conclusion that any private e-mails sent on public accounts are not "public records" under the Public Records Act. However, in the facts you have presented, where the records have no relation to the function of the HTHA, where there is no evidence of illegal activity, and where there has been no finding of the HTHA that disciplinary action is appropriate based on the records at issue, we reach the same conclusion reached in La. Atty. Gen. Op. No.1 0-0272 that the purely personal e-mails at issue are not subject to production under the Public Records Act. If the public body had determined that illegal activities were conducted or that such records presented cause for disciplinary action, this would factor into the content-driven analysis that should be performed by the custodian in examining the connection between the record and the conduct of public business or the functioning of the public body, and could change the conclusion reached in this opinion. 5

We hope that this opinion has adequately addressed the legal issues you have raised. If our office can be of any further assistance, please do not hesitate to contact us.

With best regards,

JAMES D. IIBUDDY" CALDWELL
ATIORNEY GENERAL

JDC:EAB

4 See also La. Atty. Gen. Op. Nos. 08-0312 (a handwritten note was not a public record subject to disclosure when such note was not used, prepared, possessed or retained for use in the. conduct, transaction, or performance of official duties), 79-242 and 90-364 (only those writings relevant to the functioning of the public body were subject to. public access). 5 Please note that simply because these facts could change the conclusion as to whether the record is a "public record" as defined by La. R.S. 44:1 (A)(2)(a), reaching such a conclusion would not automatically result that the record is subject to production. The custodian would then be required to determine whether the record is subject to disclosure or if there is an exception to production that applies.