Introduction
The Louisiana Public Records Act (“Public Records Act”), enacted by the Louisiana Legislature in Act 195 in the regular session of 1940, was established to allow the public access to public records. Subsequently, Article XII, Section 3 of the Louisiana Constitution of 1974 was adopted and provides in relevant part that “no person shall be denied the right to… examine public documents, except in cases established by law.” In an effort to more specifically define public records, set limitations relative to public records access, and set forth enforcement procedures, the Louisiana Legislature has enacted several statutes in Title 44 of the Revised Statutes.
While many deem the publics’ access to public records to be critical to transparency in government, some public entities and their representatives find public records request to merely interfere with their official duties. However, a better understanding of the Public Records Act and its rules and regulations by the public and public agencies may dispel some of the misgivings related to a public records request. Moreover, a proper Public Records Request Policy can alleviate some of the confusion and burden experienced by a custodian or a custodian’s representative relative to the review, assembly and response to the public records request within the imposed statutory delay periods.
These materials are for informational purposes. Every public records request is unique and requires an independent analysis of the relevant case law and statutes. Thus, it is highly recommended that all public agencies consult with legal counsel when responding to a public records requests.
I.The Louisiana Public Records Act, LSA-R.S. 44:1 et seq
Pursuant to LSA-R.S. 44:1(2)(a) of the Public Records Act, a public record is defined in pertinent part as follows:
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.
It is well settled that the Public Records Act must be liberally construed in favor of free and unrestricted access, "and any doubt must be resolved in favor of the right of access." Title Research Corp. v. Rausch, 450 So.2d 933, 936-937 (La. 1984). Therefore, Courts are inclined to deem all records in the possession of a public body a public record exempted only by a specific statute. Accordingly, when a public agency attempted to deny access to emails, the Louisiana Supreme Court concluded, albeit not specifically referenced in the Public Records Act, that “emails” are included in the definition of public record. City of Pineville v. Aymond, 982 So.2d 292 (La. App. 3 Cir., 2008). In City of Pineville, the Court of Appeals considered a request for the e-mails of a city employee sent or received on a city computer. Specifically, an applicant requested “…all e-mails to or from Rich Dupree for the past five (5) years on any Computer at the City of Pineville….” The City responded with a request that the claimant narrow the scope of his request, because as presented, it may contain privileged communications. The trial court determined that the City’s response was appropriate and further directed the City to “segregate the email communications requested by the Defendant into two categories: (1) those that require review and comment by the City Attorney; and (2) those that do not require review and comment by the City Attorney…At that point, the Defendant may request the immediate production of all email that does not require review and comment by the City Attorney…” Thus, the emails are exempt.
Additionally, in Attorney General Op. No. 2001-155, the Attorney General determined that electronic mail communications pertaining to public business but sent or received on private property may be within reach of the Public Records Act. Further, monitoring of such communications would be considered constitutional in the presence of a warrant. The distinction here is the mechanism used for transmitting the communication. Nonetheless, whether generated on public computers, publicly owned telephone or created at an offsite location regarding public business, said documents may likely be subject to disclosure under the Public Records Act.
With regard to the person responsible for providing access to public records, the Public Records Act defines a “custodian.” Pursuant to LSA-R.S. 44:1 a “custodian” is:
(3) As used in this Chapter, the word "custodian" means the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.
Appropriate designation of the custodian is critical when making a public records request and defending a Writ of Mandamus.
II.Exceptions
In recognition that some public records should be exempt for security reasons or privacy implications, the Louisiana Legislature enacted statutes that specifically exempt certain records from disclosure. The following is a list of statutes that exempt certain records from disclosure under the Public Records Act:
LSA-R.S. 44:2: Records involved in legislative investigations
LSA-R.S. 44:3: Records of prosecutive, investigative, and law enforcement agencies, and communications districts
LSA-R.S. 44:3.1: Certain records pertaining to terrorist-related activity
LSA-R.S. 44:3.2: Proprietary and trade secret information
LSA-R.S. 44:4: Applicability
LSA-R.S. 44:5: Records of the governor
LSA-R.S. 44:9: Records of violations of municipal ordinances and of state statutes classified as a misdemeanor or felony
LSA-R.S. 44:10: Confidential nature of documents and proceedings of judiciary commission
LSA-R.S. 44:11: Confidential nature of certain personnel records
LSA-R.S. 44:12: Medical records of persons covered by the Office of Group Benefits programs
LSA-R.S. 44:13: Registration records and other records of use maintained by libraries
LSA-R.S. 44:14: Insurance, health and accident; list of insured to be provided to department
LSA-R.S. 44:15: Medical records of persons applying for disability retirement through any state or statewide public retirement system or pension plan or fund
LSA-R.S. 44:16: Personal data records for certain members of public retirement systems, plans, or funds
LSA-R.S. 44:17: Immunization records; definitions; disclosure; liability; procedures
LSA-R.S. 44:18: Geophysical survey information
LSA-R.S. 44:19: Records of a coroner; autopsy photographs, video, and other visual images
LSA-R.S. 44:20: Records of discharge from armed forces
LSA-R.S. 44:21: Municipal fire and police civil service; test materials confidential
LSA-R.S. 44:22: Economic development negotiations
LSA-R.S. 44:23: Department of Transportation and Development; preconstruction estimates
LSA-R.S. 44:23.1: Department of Transportation and Development; Sabine River Authority; exception for certain sensitive security information or critical infrastructure information
In addition to the aforementioned list, in 2001 the Louisiana Legislature enacted LSA-R.S. 44:4.1 which consolidates all of the exception to the Public Records Act that are not specifically enumerated in Title 44 of the Louisiana Revised Statutes and found elsewhere in the Revised Statutes.
III.Custodian Obligation
The Public Records Act specifically obligates the custodian of records to present documents to the applicant upon request without inquiry beyond the age and certification of same. In this regard, LSA-R.S. 44:31 specifically provides:
§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.
Amended by Acts 1978, No. 686, §1; Acts 1999, No. 1154, §1; Acts 2004, No. 759, §1.
In addition, LSA-R.S. 44:32 provides in pertinent part:
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, except an inquiry as to the age and identification of the person and may require the person to sign a register and shall not review, examine or scrutinize any copy, photograph, or memoranda in the possession of any such person;
When interpreting these provisions, Louisiana Courts have concluded that the statute sets forth four separate rights. Joseph V. Foster, Jr. v. Duncan S. Kemp, III, District Attorney, 657 So. 2d 681,(La.App. 1 Cir. 06/23/95). The rights to inspect, copy, reproduce and obtain a reproduction of a public record. The plain language of the statute suggests that the public can only make an in-person request. However, the First Circuit Court of Appeal held in Title Research that “the method of requesting is not specifically set out; however there is nothing in LSA-R.S. 44: 31-44:33 which specifically and unequivocally denies or restricts the right to request copies of public records by use of the mail. As previously stated, the right of access to the public records is guaranteed by the constitution which must be construed liberally in favor of free and unrestricted access.” Title Research, 450 So.2d at 936. Thus, written public records request are acceptable.
In addition, pursuant to the specific language of LSA-R.S. 44:32, the custodian is prohibited from inquiring relative to the reason for the public records request and can only confirm age and identification. The custodian must also give all reasonable aid and comfort to the person who desires to inspect public records. However, when inspection can only be conducted after business hours, the applicant must pay the public employee’s overtime pay in advance, and such after-hours inspection is subject to the custodian’s discretion.
Also, when a public record contains exempt information, confidential information or information subject to the right of privacy, the custodian must separate said matters from the accessible public records. For example, personnel files, grievance procedure filings and performance evaluations are exempt from disclosure. See Broderick v. State of Dept. of Environmental Quality, 761 So.2d 713 (2000) and Trahan v. Larivee, 359 So.2d 331, (1978).
IV.Availability of Records
With regard to the time delay for a custodian to present a record to an applicant, the statute clearly provides that a public record must be presented immediately when an in-person request is made unless the records is unavailable or the custodian is of the opinion that the record may be exempt from disclosure. LSA-R.S. 44:33 provides in pertinent part:
§33. Availability of records
A.(1) When a request is made for a public record to which the public is entitled, the official, clerks of court and the custodian of notarial records in and for the parish of Orleans excepted, who has responsibility for the record shall have the record segregated from other records under his custody so that the public can reasonably view the record.
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B.(1) If the public record applied for is immediately available, because of its not being in active use at the time of the application, the public record shall be immediately presented to the authorized person applying for it. If the public record applied for is not immediately available, because of its being in active use at the time of the application, the custodian shall promptly certify this in writing to the applicant, and in his certificate shall fix a day and hour within three days, exclusive of Saturdays, Sundays, and legal public holidays, for the exercise of the right granted by this Chapter.
In addition, R.S. 44:32(D) specifically provides:
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.
Lastly, with regard to the unavailability of records, LSA-R.S. 44:34 provides in pertinent part:
§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.
Amended by Acts 1978, No. 686, §1.
When interpreting the aforementioned statutory provisions, it is generally held that if a question arises relative to the public nature of a document, the custodian must make such a determination within three days. In addition, courts have customarily held that if a record is not immediately available, it must be made available within three days, regardless of whether the request is made in-person or in writing. However, in Foster v.Duncan S. Kemp, III, District Attorney, 657 So.2d (La.App. 1Cir. 06/23/95), the First Circuit Court of Appeal offered an alternative interpretation of LSA-R.S. 44:31-35 relative to a written request for public records. In Foster, an inmate forwarded a public records request to the District Attorney and when the requested records were not presented to the inmate within three days of the request, the inmate filed a Writ of Mandamus seeking declaratory relief. The First Circuit opined:
The District Attorney here did not raise such a question [whether information was a public record], and section 32D's three-day period is therefore inapplicable. Similarly, section 35A's five-day period equivalent to a denial of the right to inspect or to copy applies only to those two of the four distinct rights that LSA-R.S. 44:31 grants, and thus has no application to a written request for copies.
The statute does not specify a time within which a written request for copies must be answered. One infers that a response is due within a reasonable time (considering that, after the request is made, the cost of reproduction must be accurately calculated). Whether or not the District Attorney's response here came within a reasonable time, the statutory provisions under which Foster claims entitlement to damages are not applicable.
Thus, the Foster Court concluded that “a response is due in a reasonable time.” See also Attorney General Op. No. 1996-303.
Moreover, when interpreting LSA-R.S. 44:32(A) with regard to unreasonably burdensome request, the Attorney General in Attorney General Op. No. 2001-0244 concludes that “even if the public records request appears to be unreasonably burdensome, the records must still be provided.” Further, “public records law contains no limitation on the number or size of the requests which may be made by a person.” However, in Attorney General Op. No. 2002-391, the Attorney General opined that “[I]f the examination of these records would cause an unreasonable disruption of your office’s normal business operation, a determination which is in the discretion of the custodian, the requestor may be required to inspect these documents after hours. If this is the case, the provisions of R.S. 44:32(A) shall be followed requiring the person examining records to advance funds for the reasonable compensation of person representing the custodian.”
Therefore, a custodian may have more than three day to respond to a written public records request. However, the public body should consult with counsel before following this interpretation. Moreover, while a request may appear burdensome, public bodies should air on the side of caution and consult with legal counsel before making a blanket response that a public records request is burdensome.
V.Writ of Mandamus
An aggrieved applicant for a public records request can seek declaratory relief by filing a Writ of Mandamus. Pursuant to LSA-R.S. 44:35, a Writ of Mandamus is heard summarily and therefore expeditiously. Further, with regard to enforcement of the Public Records Act, LSA-R.S. 44:35 provides in relevant part as follows:
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.
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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.
Louisiana courts have routinely considered Writs of Mandamus, whether the request is made in-person or in writing. However, the First Circuit Court of Appeal upheld the dismissal of a writ of mandamus on grounds that jurisdiction to issue a writ of mandamus ordering the production of any records improperly withheld is available when a suit is filed under subsection A. See Joseph V. Foster, Jr. vs. Duncan S. Kemp, III, District Attorney, 657 So. 2d 681 (La. App. Cir. 06/23/95). Moreover, LSA-R.S. 44:35(A) only applies when a person has been denied the right to inspect or copy the requested public record and that a person denied either of those two rights (but not the right to have the custodian provide reproductions) may institute proceedings for the issuance of a writ of mandamus. Id. at 686. In Foster, the Court reasoned that LSA-R.S. 44:35(A) applies to an in-person request, not a written request for a custodian to provide copies and forward same. However, this opinion is not the customary practice. Therefore, until other Courts consider the appropriate application of LSA-R.S. 44:35, public agencies should assume that both in-person and written request are subject to the three day production period and entitled to file a Writ of Mandamus.
With regard to the appropriate parties for filing a Writ of Mandamus, Louisiana Courts have recently concluded that the Writ must be brought in the name of the aggrieved applicant, not the attorney representing the applicant. For instance, in Vourvoulias vs. Movassaghi et al., 906 So. 2d 461 (La. App. 1 Cir. 02/11/05), the First Circuit determined that the legal assistant for an attorney who signed and a submitted a public records request for a client was the only proper party to advance claims under the Public Records Act. The First Circuit reasoned that LSA-R.S. 44:35 only allows a court to award reasonable attorney’s fees and other litigation costs to the person seeking the right to inspect or copy.
Similarly, the First Circuit, in Redstick Studio Development v.State of Louisiana et al., 2009-1349, p. 13 (La. App. 1 Cir. 04/08/10), in reliance on Vourvoulias, specifically opines that:
Only the person who requests to inspect or copy a public record and is denied that right belongs to the class of persons to whom the law grants the cause of action. See LSA-R.S. 44:35 The record establishes that the named plaintiff in this lawsuit, Vourvoulias, was not the requester; Bivona was the requester. Bivona, as the person who requested access to the documents regarding the State project has a right of action to bring a suit for enforcement of the Public Records Law and for damages, attorney's fees, and litigation costs. Vourvoulias made no request to inspect or copy the records pertaining to the State project, and thus, has no such right. Accordingly, we find that Vourvoulias does not belong to the class of persons to whom Louisiana Revised Statutes 44:35 grants the cause of action asserted in this suit.
Moreover, the Vourvoulias court further states that “the existence, or non-existence, of an agency relationship is not the turning point in a case such as this one.” Thus, the court concluded that the attorney for Redstick, who issued the referenced public records request on firm letterhead and under his signature, was the only person with a right of action, not the client Redstick. Therefore, when a Writ of Mandamus is filed, pay close attention to the named arty plaintiffs and file the appropriate exception if warranted.
VI.Public Records Request Policy
Public bodies can alleviate some of the complications and associated liabilities for failing to appropriately respond to a public records request by implementing a Public Records Request Policy. The policy should identify the appropriate person in the agency for responding to all public records request. The custodian must then inform and train all personnel to immediately and without delay forward all written request to the designated representative or immediately inform the designated person if the request is being made inn person.
The designated person should also maintain a calendar with tables identifying the date the public records request is received in the office and the deadline for response. The written public records request should then be date stamped. The representative should then review the request and determine whether the requested documents are subject to disclosure under the Public Records Act. Alternatively, the designated representative should contact legal counsel and forward the request for further instruction.
Record Retention Program
In general, pursuant to LSA-R.S. 44:36 public records are expected to be retained for at least three years unless a Record Retention Schedule suggest otherwise. Further, pursuant to LSA-R.S. 44:412, every public agency is expected to develop a records management schedule. The Secretary of State through the Department of State Archives regulates retention schedules and the management of public records. The Records Management Handbook, the Email Records Retention Policy, the State Record Management Policy and Appendices and Retention Schedule prepared by the Department of State Archives are included for your review.
Also, the Department of State Archives offers training for the development of a records management policy and retention schedule. For training dates and times visit www.sos.louisiana.gov or contact either Carrie Fager, CRM at 225.925.7552 or carrie.fager@sos.louisiana.gov or Teresa Hardy at 225.362.5181 or teresa.hardy@sos.louisiana.gov.
