Public Records Laws and Social Media Retention in
Louisiana

Excerpt from Louisiana Public Records Act

CHAPTER 1. PUBLIC RECORDS

PART I. SCOPE

§1. General definitions

(2)(a) All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including electronically stored information or information contained in databases or electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are “public records”, except as otherwise provided in this Chapter or the Constitution of Louisiana.

(b) Notwithstanding Subparagraph (a), any documentary material of a security feature of a public body’s electronic data processing system, information technology system, telecommunications network, or electronic security system, including hardware or software security, password, or security procedure, process, configuration, software, and code is not a “public record”.

Excerpt from Louisiana Attorney General Guidance

Definitions
There is no definition of what constitutes a “public record” in the constitution so it is totally a legislative prerogative as to what is included or excluded by that term. Thus, there are three basic definitions.

LSA-R.S. 44:1A (2) (a) provides the definition of “public records” and the definition is rather detailed and lengthy. Suffice it to say that any documentary materials without regard to their physical form or characteristics, which were used, are being used, or which were retained for use by a “Public Body” are public records for the purposes of Title 44 Chapter 1. So the definition is a very broad definition.

“Public body”, similarly to “Public Records”, also is a lengthy definition (LSA-R.S. 44:1A (1)) and it is sufficiently broad to include all state and local governmental entities.

In order to impose individual responsibility for the production of a public record the law provides that a “custodian” is the person who heads the public body, or a representative specifically designated by the head of the public body. (LSA-R.S. 44:1A (3)) If there is no designated custodian the public agency head is the “custodian” by default.
Interpretation
The Louisiana Supreme Court in Title Research Corp. V. Rausch 450 So.2d 933, 937 (La. 1984) opined:

The legislature, by the public records statutes, sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. There was no intent on the part of the legislatures to qualify, in any way, the right of access. [Citations omitted]. As with the constitutional provision, the statute should be construed liberally, and any doubt must be resolved in favor of the right of access.

Consistent with this policy, courts have held that exemptions must be strictly construed. Denox v. Berthel, 682 So.2d 300, (1996).

Excerpt from Louisiana District Attorney Warren Montgomery Social Media Policy

SOCIAL MEDIA POLICY

Our Office participates on Social Media in order to give the community access to information about the DA’s Office and a platform by which to interact with us. Note that under Louisiana Law, we cannot post information with regard to any open or active cases.

Please read the following before posting to our Page. A comment, message, link, photo or video on this Page/Account constitutes acceptance of these terms.

Commenting – We do not allow you to initiate posts on our page, but welcome comments and opinions. We encourage you to keep your comments related to our posts. Our goal is to share ideas and information with as many individuals as possible and our policy is to accept the majority of comments made to our profile.

If you are unsure whether a comment violates our policy, or if you would like to request we post something that you deem would be beneficial for our followers and community, please contact us at DAMontgomery@22da.com attn. Communications.

USER GUIDELINES

Please do not comment on any open cases. If you do, your comment will be deleted, and we will block you from future commenting;

We will be moderating our Page and reserve the right to remove and/or block anyone or any comment that we deem inappropriate or offensive, especially repeated violations. This includes comments, links, photos or videos which contain:

• Hate Speech;
• Profanity; obscenity or vulgarity;
• Nudity;
• Defamation to a person or people;
• Defamation to an organization;
• Name-calling and/or personal attacks;
• Comments whose main purpose is to sell a product;
• Comments that infringe on copyrights;
• Spam comments, such as the same comment posted repeatedly on a profile;
• Comments that harass, stalk, threaten or violate the legal rights of others;
• Comments that have personal information about another person or that violate a person’s privacy.

Users warrant that they own or have permission to post the information contained in their postings, including but not limited to video, photos, or digital reproductions and that no copyright or trademark infringement has taken place due to posting on this site;

Users of this site do not retain any rights over their postings. Postings are intended for public view and any personal information posted constitutes a waiver of any rights to privacy or confidentiality;

Postings will be archived by the DA’s Office and subject to requests for records;

We understand that social media is a 24/7 medium; however, we do not monitor comments 24/7. We may not see every inappropriate comment right away, and we are trusting in the maturity of our community to ignore personal attacks and negative speech or respond politely.