Last of four-part series:
There are those isolated cases scattered across the legal landscape in which a citizen or member of the media goes to court and wins a public records case against a reticent public official but even those occasional victories in the interest of transparency are bittersweet at best.
It goes without saying anyone would rather win than lose; that’s a no-brainer. So prevailing in a case against an elected official or appointee bent on blocking the free flow of information always evokes a certain smug euphoria.
On the other hand, each victory in a public records lawsuit should prompt members of the media and governmental watchdogs alike to ask five basic questions:
- Why was litigation necessitated in the first place?
- Why aren’t officials more forthcoming with information?
- Were they trying to hide something embarrassing or incriminating?
- Or were they just being obstinate as a matter of general principle?
- Was fighting disclosure worth the legal costs and the potential of fines for noncompliance—and even the possibility of criminal charges?
The IND, a Lafayette news organization has most likely asked each of those questions repeatedly in the case of Lafayette City Marshal Brian Pope and his determination to shield 588 pages of emails from Pope’s workstation at the Lafayette City Marshal’s office.
For his part, Pope must be dwelling on the final question: Was it worth it?
At issue is Pope’s alleged use of his office—and the city’s computer—to campaign for Lafayette Parish Sheriff candidate Chad Leger over his opponent in the October 2015 election, Mark Garber. Garber ultimately won that election.
But when The IND requested those emails, apparently withheld some records and deleted others that were nevertheless captured on the Lafayette City Government servers through which all emails to and from city departments are routed.
Fifteenth Judicial District Court Judge Jules Edwards on Dec. 14 issued an order enjoining Pope from withholding any requested records. The IND originally made its public records requests on Oct. 8 and again on Nov. 30 and on Jan. 4 of this year, Edwards ruled that Pope’s response was “woefully inadequate,” that his withholding of documents was “arbitrary,” and his failure to respond “unreasonable.” http://theind.com/article-22457-Judge-Marshal-Pope’s-response-still-‘woefully-inadequate’.html
By the time Judge Edwards was finished with Pope, the tally was nearly $100,000 in penalties (at $100 per day for each day Pope failed to respond to the requests, or $17,300), plus attorney and expert fees and court costs—and, get this: 173 hours (one hour for each day of non-compliance) of community service instructing government employees on public records law. Oh, the irony!
Just for good measure, Judge Edwards sentenced Pope to one month in jail for contempt of court, suspending all but seven days and reducing that to house arrest.
The judge’s ruling also held Pope personally responsible for all costs and penalties.
Former Lafayette City Attorney Mike Hebert testified during cross-examination that all email traffic “got routed through LCG (Lafayette City Government) servers, and thus is as much the property of LCG as it would be the marshal’s. As soon as we became custodians we became responsible for producing the records,” he added.
Pope, for his part, fell back on the tried and true “everybody does it” explanation for his using his office for political fundraising purposes. “I’m a political figure,” he said. “I can use my office for my campaign. My predecessor did it, too.” That argument apparently failed to impress Judge Edwards.
Edwards also came down hard on Pope when Pope showed up in court in uniform and armed with his handgun, both of which are contrary to Louisiana law regarding police appearing in court as defendants.
Edwards said that and his “everyone does it” defense provided “remarkable insight” into how Pope runs his office. http://www.theadvertiser.com/story/news/crime/2016/03/24/judge-sentences-lafayette-city-marshal-jail-contempt/82208738/
Appropriately enough, on April 1, Pope’s house arrest was postponed while he appeals his contempt conviction. http://theadvocate.com/news/acadiana/15361890-123/house-arrest-for-lafayette-city-marshal-brian-pope-postponed-during-appeal-in-public-records-case
The Lafayette case is one of the ugliest public records lawsuits in the state since the brouhaha over the LSU Board of Supervisors’ furtive selection of F. King Alexander as LSU President. But that doesn’t mean things can’t get nastier. With the explosion of Internet blogging generating more public records requests, any immovable objects (resistance or reluctance in complying) is certain to be met by the irresistible force (litigation).
Bloggers like Elliott Stonecipher, Jason France, and yours truly, along with citizens like James Finney, Barbara Ferguson, and Charles Hatfield, some members of the media, and legislators like State Rep. Jerome “Dee” Richard are going to keep pushing for more sunshine so long as there continues to be contracts with 50 blank pages or superficial “investigations” like the charade recently carried out by State Police in the Burl Cain and Angola State Penitentiary episode.
We are going to keep digging as long as we have officials attempting to sneak illegal retirement benefit increases into legislative bills during the closing minutes of legislative sessions. We will keep making public records requests into questionable methods of investigation and punishment carried out by autonomous boards and commissions like the State Dentistry Board and State Board of Medical Examiners. We will continue to ask questions when we observe a double standard in how we are expected to comport ourselves as citizens and how public officials are allowed to conduct themselves in their official capacities—be they agency heads, elected officials, regulatory boards and commissions or law enforcement agencies.
And when we encounter that immovable object, that resistance to transparency, we will continue to haul your butts into court until we are on a first-name basis with every judge in Baton Rouge. Reluctance or denial on your part will only strengthen the resolve on our part.
After all is said and done, we deserve two things from our government:
- An even playing field where all live under and abide by the same rules;
- The right to see, hear, and know that even the most obscure agency carries out its business in an upright, honest and fair manner.
We will accept nothing less.
And we shouldn’t have to sue someone to earn that right