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’…

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Give the folks at the Division of Administration (DOA) credit: they obviously had a mole infiltrate our operations who then successfully foiled one of our more brilliant schemes.

A second memorandum was sent out on Wednesday by the patricians of paranoia, otherwise known as those in the Division of Administration who remain convinced they are above the law and who see no need to respond to public records request by such lowly creatures as reporters.

That’s right, reporter, Michael Diresto’s volunteered opinion notwithstanding. I’m also a blogger, of course, but in addition to my blog, I cover state government for a couple dozen newspapers throughout Louisiana.

A little over a year ago I attempted to obtain a copy of Gov. Bobby Jindal’s executive budget from Diresto, Assistant Commissioner for Policy and Communications, who was handing out copies of the budget to the media. He informed me I was not getting one. He first said it was because I didn’t have an office on press row in the basement of the Capitol. When I pointed out that he had just given a copy to a reporter who did not have office space in the Capitol, he said, “You’re not getting a copy because you’re not legitimate press.”

For Mr. Diresto’s enlightenment, I hold a bachelor’s degree in journalism. I spent some 30 years as a full time reporter for newspapers in this state as a reporter and editor. My career has included reporting jobs for the Shreveport Times, the Monroe News Star and the Baton Rouge Advocate and I also served as managing editor of the Ruston Daily Leader. I even managed to pick up an occasional award for news reporting (two), feature writing (two) and investigative reporting (three) along the way. Given those facts, I would be most interested in hearing Mr. Diresto provide his definition of “legitimate.”

But back to the issue at hand.

On Wednesday, a second email went out that addressed the issue of visitors to state buildings—buildings you the taxpayer paid for and which are filled with overpaid executives who share one thing in common: an over-inflated sense of their own importance by virtue of their being appointed to jobs for which they possess few, if any qualifications. (I’m not talking about the rank and file employees who perform the grunt work that keeps the state running. They are the most unappreciated, underpaid, most dedicated people I have ever had the pleasure of knowing.)

The first email, sent out on Tuesday, referenced an “incident” and directed that visitors were not to be allowed on the seventh floor of the Claiborne Building where DOA’s hallowed offices are located. The incident, of course, was the sudden, unexpected and unwelcome appearance of yours truly to request copies of public records I had first requested more than a month before. https://louisianavoice.com/2013/04/17/unexpected-visit-in-search-of-public-records-causes-panic-doa-ordered-into-virtual-louisianavoice-lockdown-mode/

The second email was sent out a day later by Ronnie Gilbert, Operations Division Manager, Office of State Buildings, and expanded the crackdown. It read thusly:

• Please inform your employees that all food deliveries for any events, meetings, conferences, etc., are to be picked up at the security desk in your facility. Upon receipt of the food the security desk will contact the agency for their representative to come and retrieve the food items from the security desk. At no time will security desk personnel allow the food vendor delivery personnel on the floors of the building.

So there you have. They’re onto us.

Our ingenious plan to wear a Domino’s Pizza shirt, slip a recorder into the pizza box and eavesdrop on top secret conversations while waiting for our tip is thwarted, nipped in the bud. Alas, what will we do now for a story?

There’s no official word, but the strong rumor is that additional emails will be forthcoming in short order that will further tighten lax security at state buildings.

For example:

• If a state employee should suffer a coronary or go into a diabetic coma on one of the upper floors, first responder personnel will be required to check in at the security desk and the guard will call the appropriate office on the phone. Someone from the victim’s office will then ride down the elevator, retrieve the defibrillator or insulin from EMS personnel and take it back upstairs. EMS personnel will be required to wait on the main floor in full sight of the security desk.

• If there is a fire on an upper floor of any state building, fire fighters will be allowed to pull a hose into the building’s foyer and then wait while the guard calls upstairs for someone to come down and get the hose. That person would then pull the hose up the stairwell to the affected floor while firefighters wait—in full view of the security desk.

• Visitors to the State Capitol will no longer be allowed to take the elevator to the observation deck some 24 floors up. The elevator, after all, necessarily goes right by the fourth floor, and that’s where Jindal is—sometimes—and where Timmy Teepell runs his Southern headquarters of OnMessage. We simply cannot have the great unwashed, the despised riffraff, common citizens, passing this close to an office of such prestige and towering intellect.

Some might call this paranoia and perhaps it is. But one can’t be too careful with crotchety old illegitimate reporters snooping about, sneaking around and writing the truth.

After all, no less an obsessive distrust authority than Nixon Secretary of State Henry Kissinger said, “Even paranoid people have real enemies.”

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