Second of four-part series:
When the conversation turns to public records, there’s seldom a reporter, governmental watchdog agency, or a private citizen active in the public arena who doesn’t have a personal story to tell about obstacles encountered in efforts to obtain documents.
Nowhere in state government is that more evident than in the labyrinth known as the Louisiana Department of Education (LDOE) and in the governor’s office over the past eight years.
And if State Rep. Jerome “Dee” Richard (I-Thibodaux) gets his way, his HB 166 would make records of the governor’s office more accessible to the public. HB 166
The House Governmental Affairs Committee will hold hearings on his bill Thursday at 9 a.m.
Bobby Jindal is gone and there is reason to hope for a new era of openness in the governor’s office. But across Third Street from the towering State Capitol, John White remains at DOE and if what’s past is truly prologue, to borrow a phrase from Shakespeare’s The Tempest, any fantasizing about change is just that: fantasizing.
All you have to do is ask anyone who has suffered through the process of obtaining anything of substance in the way of public records from LDOE.
Ask James Finney, Ph.D., about his efforts to get answers to his records requests.
Finney began his quest for records from White back in April 2013 and in the ensuing years has filed dozens of other public records requests with DOE, all to no avail. Finally, after giving up on getting DOE and White to comply with state law, he sued on May 22, 2015. The suit will be heard by 19th Judicial District Court Judge William Morvant, which is not necessarily good news for Finney as we shall see later. It’s also unusual for a public records lawsuit to take nearly a year for trial in that they are supposed to be put on a fast track for hearing.
White has been taken to court at least three times in the past. He has lost no fewer than three times. In two of those three cases, monetary penalties handed down by the courts still have yet to be paid.
Barring any delays the trial in Finney’s case is set for April 29. If he prevails and if he is awarded monetary damages (and there is no reason he shouldn’t, Judge Morvant notwithstanding), he stands to reap quite a financial windfall, given the number of unmet requests and the time periods involved—all at taxpayer expense, of course.
The lone exception is LouisianaVoice, which sued and won back in 2013 and was awarded damages of $2,800 plus court costs and attorney fees. In our case, the records were produced and the monetary damages paid. But not since then.
Ask Barbara Ferguson, Ph.D. and Charles J. Hatfield.
In April of 2013, exasperated at their failure to obtained requested documents from DOE, they sued. http://www.louisianaweekly.com/research-on-reform-files-lawsuit-against-la-doe/
Ferguson is the first female superintendent of New Orleans public schools and an attorney. Hatfield is managing partner of a company specializing in diverse information retrieval and data analysis for public opinion researches. Together, they head up a non-profit organization called Research on Reforms.
Research on Reforms was founded after Hurricane Katrina and the subsequent takeover of 107 New Orleans public schools. Ferguson agreed that the Orleans Parish School Board “was a mess.” She said she was initially “delighted” at the conversion of the schools into charter schools but soon came to the realization that things were not as they appeared, particularly with the Recovery School District (RSD).
Data requested by Research on Reforms for the ’06-’07 and the ’07-’08 school years was provided but beginning in the ’08-’09 school year, the organization began to experience roadblocks thrown up to block its requests. Among the records it did receive was one with the absurd claim that one RSD school boasted a 100 percent attendance rate.
“You don’t have 100 percent attendance at a high school, ever,” Hatfield said.
“Research on Reforms, Inc. is not interested in obtaining privileged student-level data,” the organization said on its Web site after the lawsuit was filed.
But because LDOE was providing raw data to other national reporting organizations, Ferguson and Hatfield felt they had a right to the same information.
“LDOE is becoming increasingly less transparent through its recent actions to modify its website, removing historical databases and removing actual current school enrollment counts,” the Web site said.
“Because Louisiana’s state takeover of public schools was an experiment in how to improve failing schools, data had to be collected, aggregated and analyzed to determine whether the experiment was working or not,” it said. “While the Louisiana Department of Education collected, and continues to collect, the raw student level data needed for analysis, the LDOE has developed its own rules for releasing this data.”
LDOE dug in its heels and the lawsuit proceeded to trial in Baton Rouge’s 19th Judicial District Court before District Judge…..William Morvant.
Incredulously, Morvant sided with LDOE and White that the citizens of Louisiana had no right to information about how the state’s ballyhooed school reform movement under Bobby Jindal and White was progressing or if the reforms were even remotely successful.
In effect, it was none of our business.
Fortunately, in the interest of transparency and open government, the First Circuit Court of Appeal disagreed with Morvant and on Sept. 19, 2014, it upheld Research on Reform’s appeal, reversed the lower court judge and remanded the case back to Morvant’s court for the awarding of damages. The $675 cost of Research on Reform’s appeal was assessed against LDOE.
The decision by the three-judge panel was unanimous.
“We agree with the plaintiffs (Research on Reforms) that the Louisiana Public Records Law does not conflict with FERPA,” the First Circuit ruling said. FERPA is the Family Education Rights and Privacy Act, a federal law that protects the privacy of student education records.
“FERPA allows an educational agency to create a record to be used for education research only if the personally-identifiable information of the students is de-identified, or that the records are coded,” the ruling continued. “According to FERPA, an educational agency can release a student’s record if the agency removes personally identifiable information and replaces it with a code….Once the document is legally created, the document becomes a public record under the Louisiana Public Records Law.
“For the reasons set forth above, this court maintains the appeal, the judgment of the trial court is reversed, and this matter is remanded to the trial court for further proceedings.”
With the issue of whether or not the records were public settled, the only remaining proceeding was the awarding of damages.
“We went back into district court and Judge Morvant was not happy he’d been reversed,” said Ferguson.
In its memorandum in support of motion for attorney fees, court costs and penalties, Research on Reforms requested that Morvant award for the trial and appeal litigation $29,779 in attorney fees and $3,121in court costs, a total of $32,850.
Research on Reforms requested the documents on Jan. 27, 2012, and LDOE did not release the documents until three years later, on Jan. 22, 2015.
L.R.S. 44:1 et seq. provides penalties for non-compliance:
- If the court finds that the custodian arbitrarily or capriciously withheld the requested record, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian. It may also award the requester civil penalties not to exceed $100 per day, exclusive of Saturdays, Sundays and legal public holidays, for each such day of such failure to give notification.
Taking into account weekends and the 10 official legal holidays per year in Louisiana, there were 684 working days over the three-year period, according to the motion. At $100 per day, Research on Reforms was within its rights in asking for penalties totaling an additional $68,400—a total of $101,250 (actually, LouisianaVoice calculated 745 days, which would have increased the penalty to $74,500 in addition to court costs and attorney fees).
The Louisiana Public Records Law further says:
- The custodian (in this case, John White) shall be personally liable for the payment of any such damages and shall be held liable in solido with the public body for the payment of the requester’s attorney’s fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of legal counsel representing the public body in which the office of such custodian is located. In the event the custodian retains private legal counsel for his defense in connection with the request for records, the court may award attorney’s fees to the custodian (Emphasis added).
So, when all parties reconvened in Morvant’s courtroom on Nov. 9, 2015, what did Morvant, in his magnanimous administration of justice under Louisiana’s Public Records Law, award Research on Reforms? How did he protect the rights of Louisiana’s citizens to access public records without future unnecessary and unfair challenges while sending a message to politicians and bureaucrats that defiance of the law was not to be taken lightly?
Why, he slashed attorney fees and courts exactly by more than half, of course, to a paltry $18,121—$3,121 in court costs and $15,000 in attorney fees. (You have to wonder what Morvant’s attorney fees would have been had he been in private practice and handled this case.)
But, but…what about the $100 per day penalty, the $68,400?
Surely you jest. “It is ordered, adjudged and decreed that …Louisiana Department of Education shall pay to plaintiffs $3,121 in court costs and $15,000 in attorney fees, for a total of $18,121. Period. MORVANT GRANTED HALF OF REQUESTED FEES
No mention of penalties for LDOE’s openly defying the law. Nada. Zilch. Zero.
It would be egregious enough if that was the end of the story, but it isn’t.
Now LDOE refuses to pay the judgment.
Department legal counsel Chris Frugé informed Ferguson and Hatfield that they must now find a legislator who will introduce an amendment in the current legislative session for payment not by LDOE, but by the Legislature.
That procedure is followed in payment of judgments against the state and the Louisiana Department of Transportation and Development (DOTD) involving automobile accidents. That’s because of some misapplication of federal funds by DOTD several years ago, but that has never been the case with any other agency—and it certainly was not the case in LouisianaVoice’s $2,800 award in 2013.
Unless there is some provision that we don’t know about, that is not the law; it’s just another hoop LDOE is making citizens jump through in order to hold John White’s feet to the fire of Louisiana law.
Tomorrow: In a case in which John White was held personally liable for $49,000 in fines, attorney fees and court costs, he has chosen to ignore the court’s decision and has made no effort to pay the judgment. But that may be about to change when the plaintiff attorney unveils his fallback plan in court.