AG opinion on emails seen as ‘slippery slope’

Good government advocates and news media trade representatives are scratching their heads over an opinion recently issued by the office of Louisiana Attorney General Buddy Caldwell.

The opinion states that personal communications sent by officials using a public agency’s email account – even if they don’t contain sensitive personal information – are not necessarily public, and that disclosure of them is not in all cases mandatory.

The issue arose in connection with a lawsuit filed against the Houma-Terrebonne Housing Authority on behalf of Terrebonne Parish NAACP President Jerome Boykin.

Boykin alleges that fliers containing a false claim that he accepted money to support a Republican state senate candidate and including a photo of former Ku Klux Klan leader David Duke were created and distributed by Housing Authority Director Wayne Thibodeaux, thus defaming him, using materials from his job.

Houma attorney Michael Billiot sought certain emails allegedly sent on the Housing Authority’s account, stating that they contained material that was politically coercive.

The Housing Authority released some of Thibodeaux’s emails to Billiot after a review, but denied others, claiming they were personal and not public.

When Billiot objected the Housing Authority sought an Attorney General’s opinion.

Citing a prior opinion on a related matter, the Attorney General’s response included the statement that 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 notes that the law defining public records does not mean everything “which any public official may happen to reduce to writing” is a public record, and includes “only those writings which are used in the performance of the functions of the public body.”

The opinion contains a cautionary note that the policy is not intended to stand for a blanket conclusion that any private emails sent on a public account are not private.

If in its review of Thibodeaux’s emails the Housing Authority board concluded that laws were broken, the opinion states, then they could be public.

But the opinion as written has garnered attention, and is undergoing study by public disclosure advocates, including the Louisiana Press Association, of which the Tri-Parish Times is a member.

“LPA has concerns about the opinion,” said Executive Director Pam Mitchell. “For instance, who determines what is public and what is not? We are asking our attorneys to review the request and the opinion as we look into the matter further.”

Barry Erwin, president of the Council for A Better Louisiana, also expressed reservations, though he also needs to look further into the matter. Several issues arose for him when told of the opinion, however, and he had strong words to share.

“If somebody is writing a letter on stationery and sends it to somebody those things tend to be public, it doesn’t matter if they are walking their dog,” Erwin said. “It becomes very subjective and creates a possible exception that is problematic. I think the opinion is open to some challenge. It creates a very slippery slope where types of communications we pretty much assumed were public then fall into new territory, where maybe somebody decides that they are not. Clearly there are exceptions in the law that do allow protection of personal information and it is pretty much spelled out why. If someone is using public means to take care of private business they should just refrain from doing that. It is very dangerous if we get into a situation where some entity itself can review records and say this is somebody’s private note and hold that from public scrutiny … If people are going to have personal communications they ought to do it in personal ways. Any agency should not be put in the business of deciding this is somebody’s personal business or private business.”