Louisiana Voice

News reporters from other states are quick to point out that Louisiana has one of the strongest public records laws in the country. A New York reporter, for example, was surprised to learn that LouisianaVoice was complaining about a month’s delay in obtaining public records from the Department of Education (DOE) and Division of Administration (DOA).

“I have an FOIA (Freedom of Information Act; the equivalent to Louisiana’s R.S. 44:1 et seq., better known as the Public Records Act) request that’s been pending up here for a year,” he said.

While it is encouraging to know we have one of the most liberal public records statutes in the nation, it may be a bit disheartening and frustrating to know that the law is only as strong as its enforcement.

To that end, Louisiana Attorney General Buddy Caldwell office has simply punted, the rationale being that should there be litigation, he is bound by the State Constitution to defend whichever state agency is named as a defendant.

But that is certainly not to say that inasmuch as his office is in fact the official counsel for all state agencies, Caldwell could whisper legal advice into an agency head’s ear as to his/her responsibilities under the public records law in an effort to avert a lawsuit by those with inquiring minds.

It could be that he is too busy with his side job as an Elvis impersonator to waste time on such trivial matters as the public’s right to know.

Because of the lack of a real watchdog to hold agencies’ feet to the fire regarding easy access to public records, many requests are simply ignored or denied with the tired catch-all “deliberative process” explanation.

DOA, however, has found a more original if unethical, immoral and fattening method of avoiding the disclosure of certain embarrassing documents: simply make sure the records no longer exist.

State agencies are required under Louisiana Revised Statute 44:411 to develop and submit a records retention schedule (a listing of their agency’s records with the retention requirements to meet their administrative, legal and financial needs) for review and approval by the State Archives. Until a retention schedule has been approved, La. R.S. 44:36 requires agencies to maintain their records for three years from the date the record is made (unless required longer by specific statute). It is important to note that La. R.S. 44:36 does not exempt agencies from developing a records retention schedule required under 44:411.

The above information was obtained from the Secretary of State website:
http://www.sos.la.gov/tabid/489/Default.aspx

RS 44:411: http://www.legis.la.gov/lss/lss.asp?doc=99732&showback=Y

RS 44:36: http://www.legis.la.gov/lss/lss.asp?doc=99704&showback=Y

Contrary to these requirements DOA does not currently have a records retention policy. What that means in terms of one particular type of public record, specifically email? Most state departments participate in Statewide Email which is operated and maintained by the Office of Computing Services (OCS). OCS is a subunit of the Office of Information Technology within DOA. The statewide email function is generally outlined at: http://www.doa.louisiana.gov/ocs/email/statewide_email_services.htm.

The OCS site makes reference to centralized archiving to help with records retention, but does not go into the details of how that is or is not utilized. The OCS will configure records retention settings in line with an agency’s policy; if no such policy exists, then OCS’s default is to retain the records for 30 days. Yes, 30 days. Not three years. Thirty days.

Thus, if a person deletes emails, those records can only be potentially obtained from OCS within 30 days of the email’s being received/sent. After that time, there is truly no record retained of those records (emails). This also holds true if an employee leaves the organization. The OCS deletes the entire mailbox when someone leaves. There is no process or policy in place to retain or maintain those emails.

As such, when a request is submitted for public records relating to email(s), it relies almost entirely on the chance that an individual included in the email chain kept those emails and a willingness on the employee’s part to provide those records to the person in the organization who ultimately responds to the request. In a world in which everyone is operating above-board, retains all of their email for at the very least their own purposes, and has no interest in hiding information, the lack of true centralized records retention policies or processes would not be as necessary. These attributes, unfortunately, do not exist in the current administration in general and in DOA in particular.

Moreover, even if individual employees were made aware of the 3-year law, it would be nearly impossible to monitor or enforce at the individual level. It would only be possible to ensure email records are maintained for 3 years if OCS were required to maintain those records.

In light of the all this, is it not remarkably convenient that DOA has never established a records retention policy? How easy would it be to simply delete emails, wait 30 days, and then simply respond with what will then be a simple truth: the records do not exist?

It has to induce some semblance of paranoia and cynicism to know that one can never be confident that everything that once existed still exists to be included in the response.

Of course, any sixth-grade computer whiz kid will tell you that nothing is ever completely erased. Everything you ever pulled up on your computer is filed away somewhere on your hard drive. You didn’t erase the document; you simply moved it to another file.

Another file that is extremely difficult to access, we might add.

Yes, an erased or deleted document can be retrieved, but it’s no walk in the park—and it’s not only complicated, but expensive.

When informed that a document does not exist, there are not many who can challenge that by fronting the cost of an extensive search—even if litigation ultimately awards the person seeking the document court costs and legal fees.

So, in the final analysis, the transparent and accountable administration does hold the cards and can on occasion dictate the terms of the game. But should some determined individual with the financial backing and necessary determination to not take no for an answer and if that individual eventually discovers documents that have been so concealed from public view, that game could change dramatically.

And it would not be pretty for the agency, the agency head or the administration.

We’re just sayin’…