New Orleans Mayor Mitch Landrieu and some of his staff have routinely used private email accounts for official correspondence, a practice that does not violate the law on its face, but that some experts say could make it hard for the public to be sure the mayor is complying with the state’s public records law.
City officials said Wednesday that both types of accounts are held to the same standards under the state’s public records law and pointed to the release of emails from the mayor’s personal Gmail address in response to public records requests.
But the use of a private account, particularly one that is also used for personal communications that would be shielded by privacy protections in the state constitution, can raise questions about who determines what is public and what is not.
The city on Wednesday provided a week’s worth of largely routine emails to and from Landrieu’s official city account, email@example.com, and his gmail account, firstname.lastname@example.org, in response to a public records request filed May 11 by The New Orleans Advocate. Gmail is a private email service provided by Google.
“As the mayor has had his same gmail account for a number of years, including before he was elected mayor, he prefers to continue using it along with his .gov email,” Landrieu spokesman Brad Howard said in an emailed statement. “There is also email@example.com, which is the email account regularly checked and reviewed by staff to process requests submitted by the public and to give information received (by others) to the mayor for review.”
All city employees, including the mayor, are informed that nola.gov email accounts are to be used only for official purposes but that all emails regarding city business are considered public records, Howard said.
“The mayor has consistently complied with all public records requests,” he said.
Rafael Goyeneche, president of the Metropolitan Crime Commission, a private watchdog group, said Wednesday that a full review of the way the city handles emails could be in order to ensure those laws were complied with.
“I think you’re going to have to have his emails audited by an impartial third party to determine whether there’s any attempt to circumvent public records laws or attempt to shield information from public scrutiny,” Goyeneche said.
The use of a private account can raise questions about that compliance, several experts and advocates for government transparency said.
The most obvious issue would be the use of a personal email address specifically to circumvent public records laws, though there is no evidence that has happened with Landrieu.
Even if that were not the case, there could still be issues with a public official determining what portion of his correspondence is a public record.
Typically, public records requests in Louisiana are handled by “custodians” at various agencies — usually lawyers — who are charged with collecting responses to such requests. Going through such an official provides a point of contact who is versed in public records law as well as, theoretically, creating an arms-length relationship between the person who created the record and the one determining what should be released publicly.
Howard, the mayor's spokesman, said city staffers — including the City Attorney’s Office — review both the mayor's public and private accounts and turn over all appropriate emails to those who request them through the public records law.
Still, some critics said the system raises questions.
“Unless some special system has been set up, when it’s a personal email account, the custodian doesn’t have access to it and can’t verify themselves where the records are or what should or should not be included in it,” said Robert Scott, president of the Public Affairs Research Council of Louisiana.
A private account can create problems, particularly if the only person who has access to that account is the official who uses it and is therefore given discretion over what records to keep, what to delete and what to release, said Eric Robinson, co-director of the Press Law and Democracy Project at the Manship School at LSU.
“It’s the same issue as with the Hillary Clinton emails: Who is going through and vetting what should be disclosed? What’s a private record and what is not?” he said.
Robinson was referring to a controversy over the 2016 Democratic presidential candidate’s use of a private email account, hosted on her own email server, while she served as secretary of state.
That’s been one of the most high-profile cases where the way a public official has handled emails has raised concerns and, some argue, a sign that public records laws have not kept pace with technology.
The Clinton emails are now the subject of a Freedom of Information Act lawsuit. State Department staffers are reviewing roughly 55,000 pages of emails from that account, and Clinton has pledged to release whatever documents don’t contain classified or otherwise privileged information.
The Clinton controversy sparked criticism of her by Gov. Bobby Jindal, though his office then refused to release Jindal’s emails in response to a records request by The Advocate. The Governor’s Office responded to that request by saying all the records were protected by broad exemptions in the state’s public records law that shield the state’s chief executive.
The Jindal administration also came under criticism when the Associated Press discovered in 2012 that a media strategy for imposing millions of dollars in cuts to state Medicaid programs was orchestrated by state officials using personal email accounts.
Private accounts haven’t been the only source of problems with government transparency. Much of the information in former Mayor Ray Nagin’s public email account and daily calendars was erased and not archived in violation of state public records law.
That violation, and Nagin administration officials’ use of an early form of text messaging to avoid creating documents that would be released in response to public records requests, eventually became part of the trial that saw him convicted of federal corruption charges.
In Landrieu’s case, the city did not indicate that it had withheld any records from either his personal or official email accounts in response to The Advocate’s request.
The newspaper’s request covered all emails involving city business that were sent or received during the week of May 4-10. That resulted in about 160 pages of email, most to rather than from the mayor.
Landrieu largely prefers face-to-face meetings and phone calls over email as they “facilitate efficient, more effective discussion and quicker results,” Howard said.
Emails to Landrieu’s private account that week largely consisted of reports by the mayor’s communications staff summarizing stories written by reporters and the mayor’s schedule.
Beyond those, there was an email from one of the developers selected for the World Trade Center project providing talking points in favor of historic tax credits — which earned a rare response from the mayor of, “Got it. Thanks” — and other correspondence, including an email alerting him to the death of Travis “Trumpet Black” Hill.
The mayor’s official email account that week largely consisted of notices of city meetings, schedules, newsletters from organizations such as the U.S. Conference of Mayors and New Orleans Police Department statistics. There were also a handful of emails on specific issues, such as an update on issues at the Joe Brown Park pool.
Mixing official business like that with personal emails, which were not released, creates even more problems from a public-records standpoint because it can be a painstaking process to weed through the documents to determine what is public and what is private, said Robinson, of the Manship School.
The city will archive the records in the mayor’s private email, spokesman Howard said.
“At the end of the mayor’s term, the city will archive all work-related emails from his time in office and will secure the emails for the three-year period required by law,” he said.
Follow Jeff Adelson on Twitter, @jadelson.