Preliminary Injunction against Publication and Dissemination of Documents Received in Public Records Request Violates First Amendment

Council of the City of New Orleans v. Washington, 13 So.3d 662 (La. Ct. App. 2009)

In this case, Relator Tracie Washington, a Louisiana attorney, and others, appealed the trial court’s issuance of a preliminary injunction which prevented them from publishing or disseminating documents received in response to a public records request and required that all documents be returned, among other restrictions.  The request at issue sought email records from a number of City Council members from 2006 to the present.  The documents produced were not reviewed for privilege prior to production.  Accordingly, the City Council sought and received a preliminary injunction to prevent their dissemination and require their return.  Relators appealed and the trial court was reversed upon the appellate court’s finding that the trial court’s injunction violated the Relators’ First Amendment rights.

In December 2008, Relator Washington made a written public records request seeking email records from a number of City Council members.  Fearing disposal of the records requested, Washington sought and received the assistance of the Director of Sanitation for the City of New Orleans who facilitated “pick up and production at some point in December 2008.”  Ordinarily, such a request would have been properly responded to via the city’s Legal Department.  Later, it was determined that the documents produced had not been reviewed for privilege.  Accordingly, the City Council sought and received a preliminary injunction preventing their dissemination and requiring their return.  In support of the injunction, the City Council argued, in part, that Washington’s obligations under the Louisiana Rules of Professional Conduct required Washington to return the privileged documents. The injunction was appealed.

Beginning its analysis, the appellate court first noted that prior to the issuance of the injunction, Washington “enjoyed unrestricted access to those records for approximately ninety days.” During that time, the contents of the emails were discussed with numerous individuals and discussed publicly.  Thus, the court reasoned that while the records produced may have contained privileged information that by definition is not a public record, “the fact remains that the records, privileged or not, have already been provided to Relators.”

The court then established that the sole issue on appeal was whether the preliminary injunction was a violation of Relators’ First Amendment rights.  Relators argued that the trial court’s preliminary injunction constituted impermissible prior restraint on freedom of speech.  In so arguing, Relators relied on the holding of New York Times, Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140 (1971), which allowed the publication of illegally obtained government records because to prohibit the publication would constitute infringement upon the publication’s First Amendment rights.  In that case, the court concluded that “the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”

In the present case, the court found that “although Relator Washington is not a member of the press, the same reasoning applies, as she seeks to publish records obtained via her public records request.”  The court recognized the competing interests of the Louisiana Public Records Law and the Rules of Professional Conduct, for example, and pointed out that ethical violations could be asserted if the privileged material was disseminated, but found that First Amendment concerns “greatly outweighed” those interests.  In support of this finding, the court noted that the U.S. Supreme Court previously stated that “any prior restraint on expression comes to this Court with a ‘heavy presumption’ against constitutional validity” and the Supreme Court’s determination that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”

The court rejected the council’s arguments that Washington’s constitutional rights were not violated in light of the temporary nature of the injunction and in light of her opportunity to object to any information withheld as privileged.  The court also recognized the numerous exceptions to production within Louisiana Public Records Law, but stated that the question before it was not the constitutionality of the law, but rather the constitutionality of preventing the documents’ dissemination when they had already been produced.  Similarly, the court noted that while privileged information must be returned if disclosed in litigation, that was not the case where the documents were released pursuant to a records request.

Finding that the trial court abused its discretion, the appellate court noted that its “opinion in this matter should not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining orders to block the publication of material sought to be suppressed.”

To learn more about this case, click here to read a recent article published in the New Orleans Times-Picayune.