Court's ruling on private emails sent through government servers is a 'cat and mouse game'

By Emma Gallimore | Dec 26, 2015

NEW ORLEANS — The Louisiana Supreme Court recently ruled that emails sent via a public agency’s system should be disclosed under Louisiana’s Public Records Law, even if the emails are related only to private matters.

The Supreme Court, however, did confirm the district court’s ruling that the identifying information of private citizens should be redacted in the released emails.

“That’s about as good as it’s going to get in terms of being able to protect privacy if they’re conducting conversations on a government server,” Edward Chervenak, assistant professor of Political Science at the University of New Orleans, told the Louisiana Record.

The emails under consideration were political emails sent and received by Lucien Gunter, the former executive director of the Jefferson Parish Economic Development Commission (JEDCO). When Gunter’s activities came under scrutiny during both external and internal audits of JEDCO operations, the Times-Picayune in New Orleans and The Advocate requested access to those emails.

After some back and forth, Jefferson Parish announced its intention to release the emails. William Henry Shane, a parish businessman, sued to keep them private. The case went to district court, where the court ruled that the emails should be released as long as names, workplaces and contact information of private citizens was redacted. The appellate court reversed the decision and ruled in favor of Shane.

“It’s a cat and mouse game," Chervenak said. "These individuals want to maintain privacy and conduct diplomacy, but the public has a right to see what’s going on. Even the courts are struggling with it.”

The Louisiana Supreme Court reversed the appellate court decision and reinstated the district court decision. In the opinion, Justice Jefferson Hughes wrote that the content of an email did not determine whether the email was public. Issues of content should be investigated only after the classification of public or private record had been made. The Supreme Court inspected 104 emails Gunter sent or received on his JEDCO account.

“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," Hughes wrote.

Allowing for the redaction of private names and other identifying information means that the court is protecting the rights of individuals while erring on the side of transparency.

“The opinion makes perfect sense when you consider that you’re supposed to broadly interpret what a public record is and err on the side of the public’s right to know,” Dane Ciolino, a legal ethics expert at Loyola University told the Louisiana Record. “The privacy right is adequately protected through redactions of private info.”

Chervenak believes the email privacy will continue to be an emerging issue. 

“We saw this with Mayor (Mitch) Landrieu," he said. "We saw this with Hillary Clinton. Their private emails and their government emails tend to get conflated. We don’t want our elected officials making deals behind our back. The whole idea is to prevent private gain through their positions and authority. Remember that this is a state that has a problem with corruption.”

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