MEMORANDUM IN SUPPORT OF RULE TO SHOW CAUSE, PETITION FOR WRIT OF MANDAMUS, INJUNCTION AND FOR DECLARATORY RELIEF AND DAMAGES
ZACHARY S. (“Zack”) KOPPLIN (hereinafter “Petitioner”) is the plaintiff and movant who sustained denials of public information to which he was entitled provision based on rights granted and authorized by the state constitution and other Louisiana statutory law.
The parties to this ordinary proceeding are a Louisiana citizen and the State of Louisiana, through its executive Department of Education, the highest unit of executive organization for education policy in the state, other than the office of the Governor. The Department is the line agency or unit responsible for education policy and custodian of records related thereto. This suit claims the Department of Education is engaged in a pattern of obfuscation and delay relating to the dissemination of public information. See La.R.S. 44:31-32.
Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree. La.Code Civ.P. art. 1871. See generally La.Const. art. XII, § 3 (providing, in part, as follows: “Right to Direct Participation. No person shall be denied the right to … examine public documents, except in cases established by law”). An alternative or conjunctive writ of mandamus is prayed for herein.
Petitioner submitted, as will be demonstrated herein, proper public records applications on several occasions requesting documents, which, in fact, exist and are required to be retained by the Department of Education, State of Louisiana (the “Public Records Requests”). The Public Records Requests were either: (i) not responded to; (ii) insufficiently responded to; (iii) improperly responded to; or (iv) conditionally responded to. In each case, the deficiency has extended beyond sixty (60) days in violation of La.R.S. 44:35. During the process, Petitioner attempted to—with no duty to do so—accommodate the Department of Education.
The Petitioner seeks injunctive, declaratory, and mandamus relief—as is appropriate under the law and facts—in conjunctive or alternative fashion. Finally, the Petitioner challenges the constitutionality of the so-termed “deliberative process” privilege, depending upon the nature, if any, of its use or involvement in the underlying decisions resulting in denials of public records requested in this case.
Throughout the last 237 years, the vitality of American democracy has relied on the capacity of an informed, empowered, and often skeptical electorate. American democracy is a transformational and revolutionary form of self-government, because it purposefully provides its citizens with equal authority over its elected representatives. The United States continues to evolve into “a more perfect union,” and despite any history of disenfranchising citizens based on arbitrary categories, its strength has derived from the fundamental right to vote, as enshrined by the Constitution.
However, participatory democracy only can be robust and meaningful if citizens are informed and if the decisions of elected officials are subject to scrutiny and oversight by the American public. To that end, all three branches of the American government, at all levels, have routinely recognized and championed laws providing citizens with the right to access, review, and inspect public records. Public records laws ensure citizens and the media can hold elected officials accountable for policy decisions, and, in so doing, they protect the American electorate from being misinformed or uninformed by those entrusted to serve in positions of immense power.
On a federal level, the Supreme Court and the United States Congress have recognized a few exceptions to the rights of citizens to access public records, exceptions that, almost exclusively, pertain to national security, international relations, and related information that, if revealed, may pose risks to the safety of the homeland. Conventionally, the United States also provides the President with wide discretion over the use of so-called “executive privilege,” though that too is subject to oversight and is not, by any means, unimpeachable. See United States v. Nixon, 418 U.S. 683 (1974). States have various forms of laws relating to what are loosely called “sunshine laws” or freedom of information laws.
Louisiana—until recently—had one of the most robust in the nation. (1)
For decades, the State of Louisiana provided the Governor’s Office with a similar, arguably analog, discretion over “executive privilege,” but only insofar as it pertained to specific records directly under the Governor’s custody. The “Governor’s privilege,” as it was sometimes colloquially known, may have frustrated many citizens, legislators, and journalists, but because the privilege applied only to the Governor’s Office and not to the various offices, agencies, and commissions under the Governor’s authority, there were still several avenues for citizens to request and access responsive public records on issues of importance and controversy.
In 2009, Louisiana Governor Bobby Jindal publicly asked members of the Louisiana legislature to pass Act 495, a law amending La.R.S. 44:5 in order to carve out specific exemptions for public records disclosures in the Governor’s office. Although Governor Jindal, at the time, claimed the amended law would result in greater transparency, throughout the last four years, he and members of his administration have relied on a tortuous interpretation of the law in an unprecedented attempt at preventing citizens and members of the media from accessing and reviewing a significant number of statutorily defined public records.
In so doing, Governor Jindal has blockaded the public’s ability to truthfully and accurately evaluate policy and fiscal determinations on a wide range of issues, including, but not limited to, health care, hospital privatization, Medicaid spending, higher education, public education, school vouchers, taxation, prison privatization, and coastal restoration efforts. This beckons all to consider Justice Brandeis’ famous admonition: “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
These are not ancillary or tertiary policy issues, and they do not relate or pertain to the Governor’s responsibilities over the National Guard or state security interests or any interests that may be legitimately entitled to an exemption. Instead, in their totality, they represent the entirety of the Governor’s domestic policy agenda, and the records that Governor Jindal’s offices have refused to disclose would not ever have been entitled to protection under the “Governor’s privilege” and should not be entitled to any exemption under current law.
In order to prevent citizens and members of the media from accessing and reviewing public records, Governor Jindal and his counsel have relied on a daringly expansive interpretation of Act 495 with the hope that courts will reflexively and diminutively defer to their interpretation.
In a Comment in the Louisiana Law Review titled “From Sunshine to Moonshine: How the Louisiana Legislature Hid the Governor’s Records in the Name of Transparency,” author Kevin Blanchard provides the basis for much of the discussion in this memorandum and methodically uncovers the ways in which Governor Jindal and his legislative allies colluded to undermine the state’s public records laws. Blanchard explains the new law:
Act 495 exempts from disclosure those records that (1) are intra-office communications; (2) relate to the deliberative process of the governor; (3) relate to the governor’s schedule or security (or that of his family); or (4) contain pre-decisional advice and recommendations to the governor concerning the budget. (2)
During the last four years, Governor Jindal and his counsel have relied on the purposeful, overly-broad language of Act 495 to withhold public records and deny records requests on virtually every issue of public concern in the State of Louisiana. Most notably, they have exploited and abused the language respecting the Governor’s “deliberative process” to justify decisions to withhold records that should be under the custody and care of other offices, agencies, and commissions. Governor Jindal, his departments heads, and their counsel have applied “deliberative process” to practically anything under the penumbra of the Governor’s authority, including, most recently, records related to the selection of the President of the Louisiana State University system.
On April 25, 2013, the Nineteenth Judicial District Court ruled that records of the selection of the LSU president were public records, were not exempt, and were subject to a grant of mandamus—ordering production of certain records as requested. On July 19, 2013, the first circuit denied LSU’s supervisory writ application, upholding the trial court’s determination. See Capital City Press, LLC v. LSU Board (consolidated), 2013-0959 (La.App. 1 Cir. 7/19/13). Curiously, counsel for LSU argued the ruling was not adverse. LSU was ultimately sanctioned $500 per day for contempt of court in failing to provide records despite repeated characterizations in the press that the case was not lost but postured to support LSU’s position.
On August 28, 2013, the Louisiana Supreme Court denied LSU’s application for review and for a stay on the issue of contempt (and otherwise), and found LSU had an adequate remedy on appeal. See Capital City Press, LLC v. LSU Board (consolidated), 2013-1994 (La. 8/28/13). The case is postured for trial on attorney fees and other penalties, at which time presumably a final judgment may be entered and parties would have the right to an appeal. Counsel for LSU maintains the rulings are not adverse to the State’s position.
The pattern is clear when viewed against August 2012 records requests on school vouchers that were refused on dubious grounds, citing the authority of two first circuit cases not applicable to the issues at hand. Making matters even more complicated, it is clear there has been a Jindal administration pattern of placing records—as in the LSU case—in the hands of third parties in an effort to shield production by claiming a private party engaged in governmental functions and is somehow not subject to public records laws.
However, as explained in the important case of Community Press, LLC v. CH2M Hill, Inc., 11-0682 (La.App. 1 Cir. 2/10/12)(not designated for publication), the first circuit held that taking on certain public functions and having a level of connexity to a public body can render a private organization an “instrumentality” of a public body under the public records law. The case is very instructive, albeit unpublished, on the issues the “pattern” of the Jindal administration is starting to marry in terms of transparency.
As the jurisprudence recognizes, the Louisiana Public Records Law must be liberally interpreted to enlarge rather than to restrict the public’s access to public records. Bozeman v. Mack, 97-2152 (La. App. 1 Cir. 12/21/98), 744 So.2d 34, 36, writ denied, 99-0149 (La. 3/19/99), 740 So.2d 113. Any doubt concerning the public’s right of access to certain records must be resolved in favor of the public’s right to see. Bozeman v. Mack, 744 So.2d at 36. The purpose of the law is to keep the public reasonably informed about how public bodies conduct their business and how the affairs of government are handled. City of Baton Rouge/Parish of East Baton Rouge v. Capital City Press. L.L.C., 2007-1088, 2007-1089 (La. App. 1 Cir. 10/10/08), 4 So.2d 807, 817, writ dismissed by, 2008-2507, 2008-2525 (La. 1/16/09), 998 So.2d 99, 100. Id., pp. 9-10.
In the Capital City Press, LLC v. LSU Board case, the plaintiff contended defendant claims “the records at issue are the records of a private contractor and not of LSU flies in the face of the clear law to the contrary,” pointing out that a governmental entity cannot simply hire an outside custodian in an attempt to circumvent the Louisiana Public Records Law. See Kyle v. Perrilloux, 2002-1816 (La. App. 1 Cir. 11/7/03), 868 So.2d 27, 31.
As in Capital City Press, LLC v. LSU Board, Kopplin contends public records in the hands of a private entity does not make records less public or less covered by the Public Records Law. See The Times-Picayune Publ’g Co., et al. v. Johnson, 94-0790 (La. App. 4 Cir. 10/3/94), 645 So.2d 1174, rehearing denied, writ denied, (La. 3/17/95), 651 So.2d 260 (it is well-settled that public records custodians do not have authority to transfer custody of public records to another so as to insulate those records from public inspection).
In candor to this court, it appears the first circuit’s prior reliance on a DC circuit court decision likely was the basis for the governor’s new privilege and two aberrant rulings having little to do with this case. The case discussions—of a 1980s federal standard of privilege under FOIA—look eerily like the new La.R.S. 44:5.
Those two rulings both quote, as dicta, language from a 1980 D.C. Circuit Court case respecting the Department of Energy’s “deliberative process privilege” insofar as it relates to the Freedom of Information Act (“FOIA”). See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); see also Louisiana Dep’t of Ins. ex rel. Donelon v. Theriot, 2010- 0069 (La. App. 1 Cir. 5/3/11), 64 So.3d 854, writ denied, 2011-1139 (La. 9/30/11), 71 So.3d 286; also Kyle v. Louisiana Pub. Serv. Comm’n, 2003-0584 (La. App. 1 Cir. 4/2/04), 878 So.2d 650.
Importantly, however, Coastal States was concerned entirely with the “deliberative process privilege” as applied to “predecisional,” “intra-office” communications among executive policymakers. The court’s concern, understandably, was that subjecting executive- level policymakers to public scrutiny before a policy was recommended or enacted could improperly stifle the decision making process.
In deciding whether a document should be protected by the privilege we look to whether the document is “predecisional” whether it was generated before the adoption of an agency policy and whether the document is “deliberative” whether it reflects the give-and-take of the consultative process. The exemption thus covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency. Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position. To test whether disclosure of a document is likely to adversely affect the purposes of the privilege, courts ask themselves whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency ; “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 3106, 41 L.Ed.2d 1039 (1974). We also ask whether the document is recommendatory in nature or is a draft of what will become a final document, and whether the document is deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another. Finally, even if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)(emphasis added).
Ironically, although the court in Coastal States improperly conflated “exemptions” with “privileges” (which are distinguishable concepts under the law), it nonetheless advanced a much more limited and significantly more narrow interpretation of the “deliberative process privilege” than officials in the Jindal administration have attempted to implement and justify. To be sure, Coastal States is not mandatory authority in Louisiana, and the court’s dicta concerning the Freedom of Information Act is neither applicable nor analogous to Louisiana public records law. But even if it were, Coastal States specifically held that the deliberative process privilege under FOIA related only to the predecisional and personal opinions of executive-level policymakers. Furthermore, the court in Coastal States held that even those “opinions” may lose their privileged status if adopted either “formally or informally.” Even if Governor Jindal and his counsel are earnestly applying this “deliberative process” exemption, the law must be struck down. It provides the Governor’s office with enormous, unprecedented, and unchecked authority over the disclosure of public records, and it is egregiously burdensome to citizens who seek to exercise their right to access those records. “Deliberative process,” as defined in the statute, is an amorphous and subjective concept, and, as such, it may be easily exploited by any Governor who seeks to shield records concerning the public’s business from the public.
American democracy not only relies on the public’s capacity to “speak truth to power”; it relies on a delicately honed system of checks and balances. The recent revelations regarding the National Security Agency are illustrative. The “secret programs” required the cooperation from all three branches of government: the executive branch implemented programs enabled by Congressional legislation and were subject to oversight by a special court appointed by Chief Justice John Roberts. There is no contemporary precedent for a state governor to invoke his authority to prevent disclosure on any information, as it applies to state law; this is a new manifesto.
“Whenever there is any doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right of access.” Landis v. Moreau, 00-1157 (La. 2/21/01), 779 So.2d 691, 694. The court has recognized the legislature’s intent to provide the public with access to the public records in the least restrictive way possible. Title Research Corp., 450 So.2d 933.
La.Const. art. XII, § 3 governs this case, providing organically, in part: “Right to Direct Participation. No person shall be denied the right to … examine public documents, except in cases established by law.” Thus, the legislature is given wide freedom to determine privileges and exceptions, subject to the fundamental right to examine public documents. The statutory construction is provided by La.R.S. 44:1:
A.(1) As used in this Chapter, the phrase “public body” means any branch, department, office, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, advisory board, or task force thereof, any other instrumentality of state, parish, or municipal government, including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function, or an affiliate of a housing authority.
(2)(a) 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, are “public records”, except as otherwise provided in this Chapter or the Constitution of Louisiana.
In La.R.S. 44:4.1, the legislature notes:
(I)t is essential to the operation of a democratic government that the people be made aware of all exceptions, exemptions, and limitations to the laws pertaining to public records. In order to foster the people’s awareness, the legislature declares that all exceptions, exemptions, and limitations to the laws pertaining to public records shall be provided for in this Chapter or the Constitution of Louisiana. Any exception, exemption, and limitation to the laws pertaining to public records not provided for in this Chapter or in the Constitution of Louisiana shall have no effect.
It is clear the intent is to liberally provide for access and applicability. However, the legislature under the aegis of “except in cases established by law” amended and enacted 44:5, as follows:
A. This Chapter shall not apply to any records having been used, being in use, possessed, or retained for use by the governor in the usual course of the duties and business of his office relating to the deliberative process of the governor, intra-office communications of the governor and his internal staff, the governor’s security and schedule, or communications with or the security and schedule of the governor’s spouse or children.
B.(1) Except as otherwise provided in this Subsection, the provisions of this Section shall not apply to any agency, office, or department transferred or placed within the office of the governor.
(2) Notwithstanding Paragraph (1) of this Subsection, a record limited to pre-decisional advice and recommendations to the governor concerning budgeting in the custody of any agency or department headed by an unclassified gubernatorial appointee shall be privileged for six months from the date such record is prepared.
C. The provisions of this Section shall not prevent any person from examining and copying any records pertaining to any money or monies or any financial transactions in the control of or handled by or through the governor.
D. For purposes of this Section:
(1) “Deliberative process” means the process by which decisions and policies are formulated.
(2) “Internal staff of the governor” means the governor, chief of staff, executive counsel, director of policy, and employees under their supervision. Internal staff shall not mean any person employed in any other executive agency, including those designated by state law as housed in or transferred to the office of the governor.
(3) Records “relating to the deliberative process of the governor” means all forms of pre-decisional advice, opinions, deliberations, or recommendations made for the purpose of assisting the governor in the usual course of the duties and business of his office.
This suit involves multiple itemized requests, properly made. (3) No timely or untimely proper objection was made, and no use of any privilege was asserted—except well after the objection period and only as a “guess” as to the state’s defense by a staff lawyer. Ultimately, the provision of the records did not occur in any meaningful way as detailed in the petition, giving rise to attorney fees and a determination of arbitrariness and caprice.
On May 27, 2013, Kopplin, a qualified requestor, sought the production and inspection of certain public records; the Petitioner submitted a Public Records Request (“Request 1”) to the Louisiana Department of Education. Request 1 itemized six (6) specific requests, related to the Louisiana Science Education Act. The records were not in the possession of the governor, were not predecisional advice on budgeting matters, and were not otherwise predecisional policy making deliberations of the internal staff of the governor.
On May 27, 2013, Petitioner submitted another Public Records Request (“Request 2”) to the Louisiana Department of Education. Request 2 itemized nine (9) specific requests related to the Student Scholarships for Educational Excellence Program (better known as the “school voucher program”). The records were not in the possession of the governor, were not predecisional advice on budgeting matters, and were not otherwise predecisional policy making deliberations of the internal staff of the governor.
In this case, the records could be produced. No one objected. See City of Pineville v. Aymond, 2008-0040 (La. 4/30/08), 982 So.2d 292 (which held the adequacy of the city’s notice of privilege was sufficient to preclude civil penalties but explained the issue). In the instances pleaded, the State interposed an argument the email search engine was not sophisticated enough, or that only so many emails were “loaded up.” Petitioner dismisses such arguments and provides proof of their falsity in his petition in paragraphs 43-45. Moreover, the records involved would be responsive to simple key word searches, which the court may conduct under its auspices.
Petitioner also notes the claim another division (i.e., of “Administration”) now possesses the records. Records are required to be maintained for minimum periods of time, and records of continuing value should be maintained indefinitely. Records retention policies are to be implemented by department heads, and these policies are to be monitored for their robustness. See generally La.R.S. 44:401 et seq.; and specifically 44:36A (providing a default minimum of three years). The idea emails simply can be destroyed is repugnant to the law ((cf. Petition ¶¶41(A)-(C)).
Elliott v. District Attorney of Baton Rouge, 94-1804 (La.App. 1 Cir. 9/14/95), 664 So.2d 122, writ denied, 95-2509 (La. 12/15/95), 664 So.2d 440, explained very clearly to litigants and the public there is no “cumulative effects” argument of having multiple requests or overlapping requests in determining the burden on the public body’s custodian; rather, each request is weighed individually. The Elliott Court explained the access must be as unrestricted as possible, with support for all objections and limitations to be placed on the custodian, not the requestor—who remains in possession of “alternate” rights—elected at his choice—of whether to copy, receive copies, or personally review records.
With regard to the absence and preservation of public records, the following provisions govern in the absence of more specific rules pursuant to La.R.S. 44:411:
§34. Absence of records
If any public record applied for by any authorized person is not in the custody or control of the person to whom the application is made, such person shall promptly certify this in writing to the applicant, and shall in the certificate state in detail to the best of his knowledge and belief, the reason for the absence of the record from his custody or control, its location, what person then has custody of the record and the manner and method in which, and the exact time at which it was taken from his custody or control. He shall include in the certificate ample and detailed answers to inquiries of the applicant which may facilitate the exercise of the right granted by this Chapter.
§36. Preservation of records
A. All persons and public bodies having custody or control of any public record, other than conveyance, probate, mortgage, or other permanent records required by existing law to be kept for all time, shall exercise diligence and care in preserving the public record for the period or periods of time specified for such public records in formal records retention schedules developed and approved by the state archivist and director of the division of archives, records management, and history of the Department of State.
However, in all instances in which a formal retention schedule has not been executed, such public records shall be preserved and maintained for a period of at least three years from the date on which the public record was made.
However, where copies of an original record exist, the original alone shall be kept; when only duplicate copies of a record exist, only one copy of the duplicate copies shall be required to be kept. Where an appropriate form of the microphotographic process has been utilized to record, file, and otherwise preserve such public records with microforms produced in compliance with the provisions of R.S. 44:415, the microforms shall be deemed originals in themselves, as provided by R.S. 44:39(B), and disposition of original documents which have been microphotographically preserved and of duplicates and other copies thereof shall proceed as provided in R.S. 44:411.
As a consequence of the State’s refusals to provide the records requested properly and fully, Petitioner is entitled to all damages allowed by law, as well as all attorney fees, costs, and penalties. This Court is asked to cast the State with the burden of persuasion and proof to support the failure to provide public records when it: (i) did not respond; (ii) insufficiently responded; (iii) improperly responded; or (iv) conditionally responded.
In the alternative and sometimes perhaps conjunctively, the Court is asked to order the State to provide all requested documents, in controversy, to be identified and then reviewed in camera, whether in possession of those records or whether those records are in the possession of contractors, third parties, consultants, or other private sector entities.
The Petitioner also, specifically, requests that the STATE OF LOUISIANA, through the Department of Education, and its constitutional officer, John White, in his official capacity, as Superintendent of Education, in accordance with law, show any reason it has for failing to provide the requested public records (viz., Requests 1, 2, and subsequently including July 8, 2013).
- The United States Supreme Court recently upheld a Virginia determination only citizens of that state could access records because to hold otherwise empowered non-citizens with a “cost” or “footing of the bill” to citizens to produce records. McBurney v. Young involved Mark J. McBurney of Rhode Island, who sought information under Virginia’s Freedom of Information Act (FOIA) because he believed a state agency error had something to do with costing him nine months of child support his ex-wife owed him. The Supreme Court unanimously ruled Virginia did not have to grant access to public records in the state to non-residents of Virginia under the state’s freedom of information law. Contrastingly, in Louisiana, “any person” may access public records. La.R.S. 44:31. Louisiana has long been held to have reposed in its law an exemplary public records and open meetings law. Indeed, in Louisiana, unlike the federal FOIA and many states’ versions of the FOIA, it is well settled that “[t]he right of the public to have access to the public records is a fundamental right, and is guaranteed by the constitution.” Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984) (citing La.Const. art. 12, § 3). See also City of Baton Rouge/Parish of East Baton Rouge v. Capital City Press, L.L.C., 07-1088, 07-1089 (La.App. 1 Cir. 10/10/08), 4 So.3d 807; First Commerce Title Co., Inc. v. Martin, 38,903 (La.App. 2 Cir. 11/17/04), 887 So.2d 716, writ denied 04-3133 (La. 3/11/05), 896 So.2d 66; Elliott v. Dist. Att’y. of Baton Rouge, 94-1804 (La.App. 1 Cir. 9/14/95), 664 So.2d 122, writ denied, 95-2509 (La. 12/15/95), 664 So.2d 440; Cummings v. Kempf, 570 So.2d 133 (La.App. 3 Cir. 1990), writ denied, 575 So.2d 390 (La.1991).
- Some of these are debatably understandable—in the sense of immediate need or time. However, “predecisional” advice exempts from disclosure the process of decision making. The Petitioner asserts that the process by which public policy is made is oft-times as important as the conclusion. It is through process that citizens are informed and come to know the “whys” and “hows,” and thereby the motivations and biases.
- The duty and enforcement laws are detailed in the petition, and are reproduced here: §31. Right to examine records:
A. Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person of the age of majority may inspect, copy, or reproduce any public record.
(2) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record.
(3) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.
§32. Duty to permit examination; prevention of alteration; payment for overtime; copies provided; fees
A. The custodian shall present any public record to any person of the age of majority who so requests. The custodian shall make no inquiry of any person who applies for a public record, . . . and shall not review, examine or scrutinize any copy, photograph, or memoranda in the possession of any such person; and shall extend to the person all reasonable comfort and facility for the full exercise of the right granted by this Chapter; provided that nothing herein contained shall prevent the custodian from maintaining such vigilance as is required to prevent alteration of any record while it is being examined; and provided further, that examinations of records under the authority of this Section must be conducted during regular office or working hours, unless the custodian shall authorize examination of records in other than regular office or working hours ….
D. In any case in which a record is requested and a question is raised by the custodian of the record 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.
A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
B. In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may view the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.
C. Any suit brought in any court of original jurisdiction to enforce the provisions of this Chapter shall be tried by preference and in a summary manner. Any appellate courts to which the suit is brought shall place it on its preferential docket and shall hear it without delay, rendering a decision as soon as practicable.
D. If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorney’s fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney’s fees or an appropriate portion thereof.
E.(1) If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification. (2) The custodian shall be personally liable for the payment of any such damages, and shall be liable in solido with the public body for the payment of the requester’s attorney fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of the legal counsel representing the public body in which the office of such custodian is located, and in the event the custodian retains private legal counsel for his defense or for bringing suit against the requester in connection with the request for records, the court may award attorney fees to the custodian.
F. An award for attorney fees in any suit brought under the provisions of this Chapter shall not exceed the amounts approved by the attorney general for the employment of outside counsel.