Judge: Federal law argued in Marshal Brian Pope’s lawsuit does not apply

Posted at 3:00 PM, Mar 19, 2018
and last updated 2019-06-26 13:54:13-04

A federal judge has ruled that a law intended to restrict illegal access to private communications does not apply to a case involving Lafayette City Marshal Brian Pope, who sought to block city-parish government from disclosing his official emails to the public.

If Pope prevailed, the requested injunction would have prevented Lafayette Consolidated Government, which operates the marshal’s email account, from responding to public records requests on his behalf. Pope’s attorney, Brett Grayson, used the federal Stored Communications Act to argue his case.

But Judge Dee Drell, of the U.S. Western District of Louisiana, found that the Stored Communications Act is “just simply not applicable in this particular situation.”

Judge: Federal law doesn’t apply

The law in question is designed to target unlawful access to data, like piracy and hacking, Drell said. It also restricts when third-party Internet Service Providers can disclose private data to the government.

Grayson argued that LCG is the marshal’s third-party ISP and has no right to disclose the marshal’s emails under the federal statute.

Drell found that LCG is indeed an ISP for the marshal. But he also found that LCG’s “intranet” system — through which all accounts are operated — falls outside the purview of the federal law, which specifies its applicability to people or entities providing “electronic communication service to the public.”

“I don’t believe that the City of Lafayette government is a public provider of these services,” Drell said.

Evidence and testimony presented on Monday also showed that Pope signed multiple use agreements that say LCG email and Internet users are monitored and that they should have no expectation of privacy.

Each email sent from a email account also includes a footer disclosing that those communications may be considered public records.

Still, Drell found that Pope’s case could have merit outside of federal court on the apparent “dispute between the marshal and the city of who owns this material.”

Ruling could impact Pope’s other suit

Pope sought to block LCG from disclosing his emails in February, after KADN and KATC sought emails and texts related to the arrest of Steven Wilkerson, who helped organize the unsuccessful effort to recall Pope.

Pope’s office provided the emails to KATC on Friday. The documents consisted of a few emails showing his public statements in response to Wilkerson’s arrest and correspondence with local media about the incident.

Now that the judge denied Pope’s request, LCG said it would also disclose the relevant emails from its archive.

Drell’s ruling could impact Pope’s other pending action against LCG in federal court. In that lawsuit, Pope uses the same law, the Stored Communications Act, to argue that LCG illegally searched and seized his emails when it first provided some of Pope’s records to a news outlet in 2015.

Because LCG maintains an archive of all communications to and from all accounts, it ended up producing emails Pope had deleted from his account. The content of some of those deleted emails led in part to a seven-count felony indictment against the marshal.

Pope is again due in court on March 26 for what’s scheduled to be a final pretrial appearance before his April trial.