Opinion Number ( 1991 )

Dear Representative Miller:

This office is in receipt of your request for an opinion of the Attorney General. Your question is as follows:

Does Louisiana law prohibit the recording of a conversation, under any circumstances, when one party of the conversation has consented to the recording?

In R.S. 14:322.1 the legislature provided it shall be unlawful for any person, intentionally and without the consent of "all" parties to a confidential communication to eavesdrop upon or record such confidential communication. However, this statute was declared unconstitutional by the Louisiana Supreme Court in Kirk v. State, 526 So.2d 223 (La. 1988). Therein the court found R.S. 14:322.1 violated the defendant's right to equal protection of the law inasmuch as prosecutors were excepted from the prohibition. The courts had held the government's recording of defendant's confidential conversation did not invade his constitutionally justifiable expectation of privacy, U.S. v. White, 401 U.S. 745 (1971), State v. Reeves, 427 So.2d 403 (La. 1982).

Consequently, a recording may be legally made when one of the parties has consented to the recording.

We hope this answers your question, but if we can be of further assistance, please do not hesitate to contact us.

Sincerely yours,

WILLIAM J. GUSTE, JR. Attorney General

BY: BARBARA B. RUTLEDGE Assistant Attorney General