Third of four-part series:
Given the reluctance to impose meaningful fines in cases of blatant public records compliance violations, one has to wonder:
- What is the purpose of going through the time consuming procedure of passing laws if they are not going to be enforced?
- What is the purpose of a judge donning a robe and sitting on the bench if he/she has no intention of upholding so even the minimum penalty for violations of the law?
- Is there some sort of unwritten agreement among certain judges and public officials that says judges must merely wink at violations and hand down only token penalties?
Louisiana laws, we can only assume, were enacted for a reason and that reason was to ensure strict compliance and to lay out proper punishment for violators. To that end, Louisiana Revised Statute (L.R.S.) 44:35 (E) (1) clearly says:
- 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….
That’s certainly clear enough but L.R.S.) 44:35 (E) (2) then goes on to say:
- The custodian 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.)
We have already seen in earlier posts this week how judges, through some form of convoluted rationale, are able to substantially reduce that $100 per day fine to insignificant amounts and in at least one case, to nothing at all.
First there was the case of the Baton Rouge Advocate and the LSU Daily Reveille. The two publications sued the LSU Board of Supervisors over its refusal to provide a list of candidates for LSU President. They won and the district court judge awarded more than $50,000 in penalties calculated on the $100-a-day formula for non-compliance only to see the monetary award overturned and negated in full by the Louisiana First Circuit Court of Appeal.
Then came our own lawsuit against the Division of Administration and Commissioner Kristy Nichols. DOA delayed responses to numerous requests by LouisianaVoice for several months only to be hit with a penalty of only $800 plus court costs and attorney fees.
And in the case of Barbara Ferguson and Charles J. Hatfield and their lawsuit against the Department of Education on behalf of their non-profit research organization, Research on Reforms, the court’s ruling was even more egregious. Three full years of non-compliance came to 684 days by the plaintiffs’ estimation (we calculated the number to be closer to 745 days) and they requested the full application of the penalty of $100 per day, or $68,400 plus attorney fees ($29,779) and court costs ($3,121).
Baton Rouge District Judge William Morvant first denied the plaintiffs’ claim outright but was overturned by the First Circuit which remanded the case back to Morvant for the imposition of penalties. Morvant not only cut the attorney fees in half to $15,000, but he completely disregarded the penalties for DOE’s—and Morvant’s apparently—disregard of the law.
FIRST CIRCUIT RULING ON FERGUSON
So now comes Mike Deshotels and his public records lawsuit against veteran defendant John White and his Department of Education.
This one is pretty easy except for one minor snag:
Deshotels filed his lawsuit on April 10, 2015, after two months of back and forth communications between him and DOE failed to produce the requested Multi Stat report for all public schools in Louisiana which contained the actual total number of students enrolled in each grade.
Even though Deshotels never requested any personal information, DOE ultimately refused his request “because of their obligations to protect the personal information of the students pursuant to FERPA (Family Education Rights and Privacy Act),” according to Deshotel’s petition.
The case finally made its way to trial in Baton Rouge on Oct. 19, 2015, before 19th Judicial District Judge Todd Hernandez.
Hernandez broke with the pack when he held John White personally liable. More than that, he assessed White with attorney fees and court costs of $11,988.84. And then, applying the letter of the public records law he ordered the payment of $100 per day “from Feb. 16, 2015, until the requested records were produced.
Despite his order, those records were not produced until more than five months later, when they were submitted along with a March 31, 2016, settlement offer. That additional delay brought the total cost, including attorney fees and court costs, to about $49,000, according to Deshotels’s Baton Rouge attorney J. Arthur Smith.
And Judge Hernandez, as if sending his own message, held John White personally liable, an indication that Hernandez had reason to believe White had withheld the records on his own volition and without the advice of legal counsel.
(Parenthetically, if more judges followed the example set by Hernandez, public officials might be more cognizant of the importance of complying with the law.)
Still White persisted in his state of denial. That March 31 settlement letter from DOE legal counsel G.M. Millet, Jr., was little more than an insult to Smith and Deshotels.
“After careful consideration, the Department of Education has decided to provide an unsuppressed copy of the October 2014 Multi-Stats Report to Michael Deshotels and to pay him $9,292.74 for attorney’s fees and litigation expenses pursuant to Judge Hernandez’s judgment,” the letter said.
He then added the traditional legal verbiage that nevertheless appeared particularly absurd: “By complying with those portions of the judgment, in lieu of appeal, the Department is not admitting fault.” Not admitting fault? Really?
Millet also said that DOE planned to appeal the “portion of the judgement (sic) imposing fines against the Department for being arbitrary and capricious.”
Smith now says that the appeals have run, meaning the deadline has passed for White and DOE to appeal the judgment. Still, no payment has been made.
So Smith is now preparing to take matters to the next level.
He has prepared a Motion for Judgment Debtor Examination as the first step toward seizure of White’s assets, including his 2013 Infiniti and garnishment of his state wages.
In that motion, yet to be filed pending Hernandez’s ruling on a separate DOE motion, Smith asks “to examine John White, Defendant/Judgment Debtor and his income records, pay check stubs, W-2 forms, last year’s income tax returns, business papers, automobile titles and registration certificates (pink slips), records of accounts in banks and other financial institutions (checking and savings) on all matters pertaining to his income or property, in order that Plaintiff (Deshotels) may find means to execute the Judgment, and that the said Defendant (White) should be ordered to appear before this Honorable Court at such time as the Court assigns for said examination.”
Now that should get someone’s attention, especially if Smith’s motion is granted.
If that’s what it takes to change the mindset of bureaucrats and elected officials, to hold them accountable to the laws of this state, to force them to cease furtive actions away from public observation, then so be it.
Tomorrow: Lafayette City Marshal Brian Pope has learned an expensive lesson for his refusal to make available 588 pages of emails Lafayette-based newspaper The Independent. Besides monetary penalties totaling almost $100,000, a state district judge tacked on seven days’ house arrest for contempt of court. That sentence has been postponed pending the outcome of Pope’s appeal of the conviction.
Louisiana Voice 
Delicious! Whatever it takes to get the message across – no one is above the law. There SHOULD be stiff penalties for lawbreakers, no matter what type of crime is committed. I’ve heard that in the law-and-order lock-em-up state of Louisiana, some lawbreakers are actually sent to prison.
Denying members of the public access to public documents generated by public agencies should be punished. Public employees such as John White are supposed to be public servants, not little kings or tyrants.
I’m impressed with Judge Hernandez and with Attorney Smith. Bold, decisive actions. Looking forward to hearing how this case progresses.
I’d only add one point to today and yesterday’s excellent yet troubling articles regarding LDOE. If you want information, there’s actually no need to bother with repeated formal requests and lawsuits – just so long as you are “friendly” to the LDOE. That’s the word passed down from John White.
The only problem with that might be that his definition of “friendly to the LDOE” is not asking for any information in the first place?!
A couple of decades ago a San Francisco resident won a judgement against mega-corp in small claims court. It went unpaid and plaintiff was able to place a judgement against the HQ building owned by the company. Don’t know what happened after that…
Judges are elected officials, hence reticent to hold fellow officials or government employees liable. Not saying it’s right, just their rationale.
Hernandez deserves high praise for the actions he has taken and Mike Deshotels deserves it for persevering. Aside from politics, the court’s actions, in general, seem aimed at discouraging frivolous requests for information – nothing else makes logical sense. Although agencies are authorized to collect reasonable reimbursement for the costs associated with providing the information, they spend time that could better be spent on whatever it is they are really supposed to be doing. However, simply trying to comply rather than skirt the law, would save even more time and the considerably greater legal expenses.
In this case, White will, no doubt, simply claim all his actions were on advice of department counsel and, voila, he can avoid any personal liability.
It is sad that, as taken to new heights during the Jindal administration, the policy of state leaders would seem to have wholly become, “We will do as we please and if you don’t like it sue us and lots of luck with that.” And we are left to wonder why government is becoming more, not less, corrupt and, more importantly, what the hell can we mullets do about it?
^^^Amen, Mr. Winham!
The problem appears to be in the law. The use of the term “…it may reward the requester…” instead of “…it shall reward the requester…” leaves the decision of whether to award anything at all totally to the discretion of the judge.
Lynda – you are absolutely correct. The words “may” and “shall” are liberally sprinkled throughout statutes and regulations, and have obviously different meanings. I think you are spot on in identifying the problem here.
With what people on this board know about the art of legislation-writing, (and remembering the lessons of C.B. Forgotston at CC73 when he taught us to be very aware of the fine art of nuanced legislation-writing), this small but impactful difference in wording is not accidental. It dulls the teeth of the law to protect the lawbreakers while only appearing to protect the public’s right to know and gives the judge an easy, perfectly legal way to protect the custodian, literally at the expense of the complainant. Brilliant.
The ghost of C.B. nods and says “I TOLD y’all to watch for seemingly simple language that changes everything. Now it’s too late.”
Back of hand to forehead and a “duh” for not catching that before. And even higher kudos to Judge Hernandez for opting for meaningful penalties that he MAY impose when not forced by statute.