Judge Glenn Ansardi of the 24th Judicial District Court will rule early next month on whether NOLA.com | The Times-Picayune can view e-mails sent over a Jefferson Parish e-mail server.
A Jefferson Parish judge will rule early next month on whether private e-mails sent through a government agency's e-mail server are exempt from Louisiana's public records law. The ruling will be the first on the question in Louisiana.
"This could be a trend setter," 24th Judicial District Judge Glenn Ansardi said Tuesday after hearing several hours of testimony and argument by attorneys.
At issue are the politically themed e-mail messages Kenner businessman Henry Shane shared with former Jefferson Parish Economic Development Commission Executive Director Lucien Gunter, who retired last year.
The messages were about candidates the Jefferson Business Council backed in the 2010 Jefferson Parish School Board election. Shane and Gunter are members of that private group and were among the 80 or so people in the e-mail chain. Parish officials acknowledged that Gunter used the publicly-owned JEDCO e-mail server to discuss the political matters, in apparent violation of parish ethics rules. JEDCO never asked for an ethics investigation, officials said Tuesday.
Shane's attorney, Patrick McGoey, argued that the e-mails were private. "Those privacy rights far outweigh The Times-Picayune's right to know about these-mails," McGoey argued.
Lori Mince, representing NOLA.com | The Times-Picayune, said the e-mails, in which candidates' electability and political fund-raising was discussed, are a "legitimate public concern." Shane's desire to keep the e-mails secret is not part of the test used in determining whether the e-mails can be released under the public records law, she said.
A private accounting firm uncovered the e-mails while auditing JEDCO in 2011. A NOLA.com | The Times-Picayune reporter, Drew Broach, sought to view the e-mails in a formal request to JEDCO.
JEDCO declined Broach's request, saying the e-mails were private and exempt under the public records law. But the Jefferson Parish attorney's office authoritized the release and was preparing to do so until Shane sued the parish on Feb. 1 in an attempt to stop it. Ansardi has had a temporary restraining order in place since then.
During testimony Shane, an architect who owns apartment complexes totaling 9,000 units and who helped found JEDCO 20 years ago, acknowledged the Jefferson Business Council's political activities, such as paying for television commercials backing particular candidates. He said, however, that JEDCO has "absolutely not" been involved in political activities. He acknowledged communicating with Gunter, but he indicated he was not aware that in doing so the messages went to Gunter's JEDCO address.
"I was doing it to an individual member of our organization," Shane testified.
Asked by McGoey whether he considered the e-mails private, Shane said, "Absolutely, because that's what they were, a private person sending a private e-mail to another person."
He said the Jefferson Business Council comprises 50 business people who've voted amongst themselves to keep their identities confidential. He said the council got involved in the School Board race after it commissioned a study to look at why people were moving out of the parish. The study concluded that families moved out of Jefferson to seek better public school systems in other parishes.
JEDCO's attorney, William Aaron Jr., argued the e-mails should not be released. He indicated that the process Broach followed in requesting the e-mails was procedurally flawed and that the method the Jefferson Parish attorney's office follows in accepting such requests does not follow state law.
Broach initially sought the e-mails from JEDCO. After JEDCO declined, Broach sought them through the parish and filed a public records request with the parish attorney's office. Assistant Parish Attorney Kenneth Krobert concluded the e-mails were releasable but gave anyone else with interest time to object. That's when Shane intervened.
Broach testified Tuesday that he sought the information for a possible story on "how they're going to help or hinder candidates.'
Saying the attorneys raised "knotty constitutional issues," Ansardi said he would keep the restraining order in place another 10 days - until March 5, before ruling. The e-mails in question are contained in 287 pages.