ICYMI: The “Next Frontier” For Public Records

The general counsel for the state’s premier newspaper and magazine association believes that the “next frontier for public records law in Louisiana” will involve text messages and emails.

How the text messages of elected officials, appointees and public employees should be treated is a particularly tricky question, said Scott Sternberg, a First Amendment attorney and a partner with Sternberg, Naccari and White in New Orleans.

There’s little to no caselaw on the subject in Louisiana, he said, which means it will either require litigation or legislation for answers.

“I think we're going to see more and more exceptions to the public records law being written,” said Sternberg, the general counsel for the Louisiana Press Association.

The issue of email accounts is equally as challenging, especially in light of the growing number of volunteer government employees, like those serving on charter school boards, he said.

“We’re used to having a school board that gets elected and is paid (with public money) and has regular meetings,” Sternberg said, comparing that structure to some charter school boards. “These are doctors and lawyers and friends of the (charter) school that are all using their Gmail accounts to communicate and organize the efforts of the school.”

While technology has certainly improved how people can keep in touch, Sternberg pointed out that cell phones have likewise created an environment where real-time communications are fairly simple — and often overlooked as a public record.

For example, do text messages between members of a public body, drafted when the body is meeting, instantly classify them as public documents?

“What are we going to do about those text messages and what are we going to do about those emails when you have people on the dais texting each other about an ordinance they’re about to vote on?” he asked during last week's episode of The LaPolitics Report podcast. “You know, technically that’s a public record. That text message is a record created in the exercise of your public duties.”

But to obtain a definitive answer, Sternberg said it would likely take a citizen or reporter being denied public records related to text messages and then that party filing suit against the appropriate arm of government.

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