Louisiana Voice

First of four-part series:

Officially, it’s Louisiana Revised Statute (L.R.S.) 44:1 et seq., or informally, the Louisiana Public Records Act.

It’s a sister statute to L.R.S. 42:4.1 et seq., otherwise known as the Louisiana Open Meetings Law.

Both are state laws enacted to give us the right to examine public documents and to attend meetings of public bodies in order to know what our elected representatives and political appointees are doing that affect our lives.

But to some in positions of authority, from city marshals to the previous governor’s office, they are merely suggestions.

And that’s what’s keeping Louisiana courts a little busier these days.

Today begins a four-part installment on ways in which certain public servants circumvent or even ignore the state’s public records law.

Under L.R.S. 44:1 et seq., a public body is defined to include a “political subdivision, or any committee, subcommittee, advisory board, or task force thereof.”

Public records include “all books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state.”

Custodian is defined as “the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.

“It shall be the duty of the custodian of the public records to provide copies to persons so requesting.

“In any case in which a record is requested and a question is raised by the custodian as to whether it is a public record, such custodian shall within three days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of the request in writing for such record notify in writing the person making such request of his determination and the reasons therefor. Such written notification shall contain a reference to the basis under law which the custodian has determined exempts a record, or any part thereof, from inspection, copying, or reproduction.” (Emphasis added.)

Under L.R.S. 44:31, the right to examine records is clearly spelled out:

• Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
• Any person may inspect, copy, reproduce, or obtain a reproduction of any public record.
• The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

LOUISIANA PUBLIC RECORDS ACT

There is no ambiguity in the law. It’s all right there in black and white. Yet, there are those, notable of them Superintendent of Education John White, former Commissioner of Administration Kristy Nichols, the LSU Board of Supervisors, a city marshal, and some judges who steadfastly abide by their own set of rules that were—and are—in stark contrast to what the law enunciates in concise language that any layman can easily comprehend.

Two key words are now routinely ignored: Public, as in public records, and Servant, as in public servant.

Almost exactly three years ago, in April 2013, the Baton Rouge Advocate and the LSU Daily Reveille filed suit against the LSU Board of Supervisors to obtain a complete list of candidates for LSU President, a position awarded to F. King Alexander. After winning at the district court level, the First Circuit Court of Appeal split the baby by partially reversing 19^th JDC Judge Janice Clark’s ruling that the names of all 35 candidates must be turned over to the public. The First Circuit ruled that only the four finalists for the post and not the entire 35 names must be made public. http://theadvocate.com/news/11213914-123/lsu-wins-partial-reversal-in

The First Circuit also overturned Judge Clark’s sanctions against LSU which would have had the university having to pony up some $50,000 in fines.

LouisianaVoice has participated in the running battle over public records, winning one, losing one and winning a partial victory in a third that is currently on appeal.

The first case involved a request for records from the Louisiana Department of Education. When those records were not forthcoming, we sued and won a judgment of $2,800 plus court costs and attorney’s fees. That judgment was paid by DOE shortly after the decision by Judge Clark.

We later sued the Division of Administration but our suit was tossed by District Judge Mike Caldwell who helped DOE attorneys formulate their objections from the bench. But soon we were back before Caldwell in a second public records suit that rendered a strange decision, a token slap on the wrist to Nichols who then appealed.

In that case, we had several public records request outstanding, including one in which we made our request in October 2015. On the same day we made our request, we had a state representative file an identical request through House Legislative Services. The legislator had the records in two days. In January of 2016, three months later, we still did not have the records, including the one given the legislator within two days, so we sued. Wonder of wonders, no sooner was the lawsuit served than presto! DOA hand delivered a disc containing the requested records.

Prior to trial, DOE offered to settle our case for attorney fees and court costs. We declined.

So we again entered the courtroom, again presided over by Judge Caldwell, confident that we had a solid case. According to our calculations, DOA owed fines of $100 per day for each day in which each of the requests went unanswered—a total of about $45,000. Caldwell, in his infinite wisdom, awarded us eight days on one request, or $800, plus court costs and attorney fees. He also ruled that Nichols would be personally liable, meaning a check would not be forthcoming from DOE but from her personal checking account.

Then Nichols did a curious thing: she appealed. She appealed an $800 judgment to the First Circuit. And even though Caldwell held her personally liable, the taxpayers are picking up the legal costs of her appeal and those costs aren’t cheap. But since she appealed, we did likewise, asking the First Circuit to overrule Caldwell and assess the full $45,000. Arguments have not been scheduled on the appeals but it is our contention if the lower court decision is upheld or better yet, if the appellate court decides to impose the full amount, or somewhere in between, Ms. Nichols should be required to pay her own legal costs. It was her decision, after all, to take a personal penalty up the ladder.

Tomorrow: Superintendent of Education John White personifies the contempt with which officials treat requests for public records—and adverse court judgments by concocting non-existent rules along the way that delay justice by requiring plaintiffs to jump through imaginary hoops to collect what’s owed them.