Shane v. Parish of Jefferson

150 So. 3d 406, 13 La.App. 5 Cir. 590, 2014 La. App. LEXIS 2284, 2014 WL 4723848
CourtLouisiana Court of Appeal
DecidedSeptember 24, 2014
DocketNo. 13-CA-590
StatusPublished
Cited by2 cases

This text of 150 So. 3d 406 (Shane v. Parish of Jefferson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shane v. Parish of Jefferson, 150 So. 3d 406, 13 La.App. 5 Cir. 590, 2014 La. App. LEXIS 2284, 2014 WL 4723848 (La. Ct. App. 2014).

Opinion

STEPHEN J. WINDHORST, Judge.

laThe parties appeal the district court’s judgment, granting a preliminary injunction for thirty days for Jefferson Parish to comply with the production and redaction of e-mails pursuant to a public records request. For the reasons that follow, we reverse the judgment of the district court and grant Shane’s petition for a preliminary injunction.

FACTS & PROCEDURAL HISTORY

The Parties

William Henry Shane (“Shane”) is a Jefferson Parish businessman and community activist. Shane is a member of the Jefferson Business Council (“JBC”) and the Committee for a Better Jefferson (“CBJ”). The JBC and CBJ are invitation only, private, non-profit organizations made up of business owners and executives committed to improving the economic well-being and quality of life in Jefferson Parish. Shane is a private citizen who participated in the exchange of e-mails concerning political activity.

The Jefferson Parish Economic Development Commission (“JEDCO”) is an independent, political subdivision of the State of Louisiana. Therefore, JEDCO’s ^authority is derived from state law. La. R.S. 34:2021.1 JEDCO’s stated mission is [409]*409to attract, grow, and create new business opportunities in Jefferson Parish. JED-CO’s deputy director and custodian of records is Dottie Stephenson.2

The former Executive Director of JED-CO is Lucien Gunter (“Gunter”). Gunter is a member of JBC and CBJ. It is undisputed by the parties that Gunter sent and received e-mails concerning political activity (ie., the Jefferson Parish School Board elections in 2010) on his JEDCO e-mail account that are the subject of the public records request in this litigation.

The Times-Picayune and its reporter, Drew Broach, (collectively “Times-Picayune ”) issued several public records requests to JEDCO seeking Gunter’s e-mails as described in the Postlethwaite & Net-terville (“Postlethwaite”) audit report. JEDCO declined to produce the e-mails. The Times-Picayune then issued a public records request to Jefferson Parish (“the Parish”) seeking production of the e-mails based on its understanding that the Parish had possession of copies of the e-mails pursuant to an internal audit of JEDCO performed by Jefferson Parish Internal Auditor, Thomas Fikes (“Fikes”).

Legislative audit of JEDCO

On June 6, 2012, Postlethwaite issued a financial audit report of JEDCO for the year ending December 31, 2011. In the report, Postlethwaite noted that it had been made aware of “de minimus use of JEDCO’s e-mail system” by “certain JED-CO employees” engaging in political activities during the year ending December 81, 2010. Postlethwaite noted that “the de minimus use of e-mails may | snot comply with La. R.S. 18:1465,” which provides that public funds shall not be used to urge any elector to vote for or against any candidate.3

The Parish’s internal audit of JEDCO

Subsequent to the Postlethwaite audit and at the request of the Jefferson Parish Council, Fikes conducted an audit of JED-CO.4 JEDCO provided a copy of the emails to Fikes for his investigation. Fikes did not suggest that any public funds were used by Gunter in generating or receiving the e-mails, but questioned whether Gun-ter violated ethical rules. Fikes recommended that JEDCO conduct an investigation concerning the e-mails to determine if the matter should be referred to the Louisiana Board of Ethics. In response, JED-CO stated that it did not take a position in any political race and believed that Gunter had' sent and received the e-mails as a “private citizen” and not as a “public servant.”

Public records request to JEDCO

On October 26, 2012, the Times-Picayune made a public records request to JEDCO seeking all “political e-mails.” A revised request was sent to JEDCO seeking “all e-mails that were referenced by Postlethwaite & Netterville.” JEDCO sought the Parish’s assistance in respond[410]*410ing, but was informed by the Parish that it could not assist JEDCO. JEDCO informed the Times-Picayune that the Parish could not assist in the response and that JEDCO would need to retain legal counsel. On advice of legal counsel, JED-CO, through its custodian of records, declined to release the e-mails on the grounds that they were not public records and/or their disclosure would violate the Constitutional right to privacy of the private citizens named in the e-mails. The Times-Picayune sent a revised request offering to allow |f,JEDCO to redact the names of the “senders” and “recipients” of the e-mails, as long as they were not JED-CO employees. JEDCO again declined to produce the e-mails. The Times-Picayune did not institute proceedings to enforce disclosure.

Public records request to the Parish

Subsequent to JEDCO’s denial, the Times-Picayune issued a public records request to the Parish seeking the e-mails, but did not offer to accept any redactions as it had with JEDCO. In the request, the Times-Picayune stated “[i]t is my understanding that copies of these e-mails are now in the custody of Tommy Fikes, Jefferson Parish internal auditor.” The Parish directed its law department to collect all copies of the e-mails from Fikes and review them. The Parish determined that the e-mails were public records, subject to disclosure, under the Public Records Law. The Parish then advised all known interested parties that it intended to fulfill the public records request.

District court hearing

Shane filed a petition for a temporary restraining order, a preliminary injunction, and a permanent injunction seeking to prohibit JEDCO and the Parish from disclosing the e-mails. A temporary restraining order was granted on February 1, 2018. The Times-Picayune and Broach intervened and by amended petition, Shane added them as defendants. A hearing was held on February 19, 2013, on Shane’s request for a preliminary injunction. The parties stipulated to the affidavits from Gunter and JEDCO’s custodian of records, Dottie Stephenson, and to the introduction of several exhibits. The district court heard testimony from Shane and Broach. After the hearing, the district court found that while the e-mails were private, they became public records as a result of Fikes’ audit. The district court further found that the Parish was a legal custodian of the emails. The district court issued a judgment granting a preliminary injunction for thirty days to |7enable the Parish to comply with the. production and ordered redaction of the names of private citizens in the e-mails.5 Shane filed a motion for suspen-sive appeal and stay; JEDCO filed a motion for devolutive appeal; and the Parish and the Times-Picayune each filed an Answer to this appeal.

In this appeal, Shane and JEDCO contend that the district court’s judgment should be overturned and the Parish should be enjoined from producing the emails to the Times-Picayune. Shane and JEDCO claim that while the trial court correctly determined that the e-mails were private and did not concern JEDCO business, it incorrectly concluded that these private e-mails were converted into public records when Jefferson Parish’s internal auditor reviewed copies of them.

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150 So. 3d 406, 13 La.App. 5 Cir. 590, 2014 La. App. LEXIS 2284, 2014 WL 4723848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shane-v-parish-of-jefferson-lactapp-2014.