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The right to examine public records was initially established by the Louisiana Legislature which adopted Act 195 in the Regular Session of 1940. Since that time the legislature has adopted numerous amendments to that act that became Title 44 of the Louisiana Revised Statutes of 1950, which is its present legal citation.
Act 195 of 1940 was adopted under the reform administration of Governor Sam Jones during the Post-Huey P. Long era.
It was apparently the first attempt in Louisiana to:
- Define the term “public record”.
- Provide exceptions.
- Allow electors or taxpayers to inspect public records.
- To require custodians to produce public records for inspections and copying.
- Provide procedures for enforcement by hearing cases on a preferential basis.
- To provide a criminal penalty for hindering a person attempting to examine a public record.
- And to provide for preservation of public records.
In the Constitutional Convention of 1973, the delegates believed that Louisiana’s constitution should be amended to provide the citizens with a constitutional provision that guarantees the public free access to the activities of its government. Thus, the convention submitted to the electorate a proposed constitution which included Article XII, Section 3, entitled “Right to Direct Participation”. That proposed constitution was adopted by the electorate and became the Louisiana Constitution of 1974.
Article XII, Section 3 provides, in part, as follows:
§3. Right to Direct Participation
No person shall be denied the right to … examine public documents, except in cases established by law. (Emphasis added)
This provision does not constitute an absolute guarantee, and is not totally self-executing. It has provided the Legislature with an express power to enact limitations on the rights extended by the Constitution, and has recognized the existence of the existing body of law pertaining to public records. Also, Article XIV, Section 18, specifically provided that:
“Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution, shall remain in effect until altered or repealed or until they expire by their own limitation.”
Thus, Title 44 of the Louisiana Revised Statutes was continued.
There is no definition of what constitutes a “public record” in the constitution so it is totally a legislative prerogative as to what is included or excluded by that term. Thus, there are three basic definitions.
LSA-R.S. 44:1A (2) (a) provides the definition of “public records” and the definition is rather detailed and lengthy. Suffice it to say that any documentary materials without regard to their physical form or characteristics, which were used, are being used, or which were retained for use by a “Public Body” are public records for the purposes of Title 44 Chapter 1. So the definition is a very broad definition.
“Public body”, similarly to “Public Records”, also is a lengthy definition (LSA-R.S. 44:1A (1)) and it is sufficiently broad to include all state and local governmental entities.
In order to impose individual responsibility for the production of a public record the law provides that a “custodian” is the person who heads the public body, or a representative specifically designated by the head of the public body. (LSA-R.S. 44:1A (3)) If there is no designated custodian the public agency head is the “custodian” by default.
The Louisiana Supreme Court in Title Research Corp. V. Rausch 450 So.2d 933, 937 (La. 1984) opined:
The legislature, by the public records statutes, sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. There was no intent on the part of the legislatures to qualify, in any way, the right of access. [Citations omitted]. As with the constitutional provision, the statute should be construed liberally, and any doubt must be resolved in favor of the right of access.
Consistent with this policy, courts have held that exemptions must be strictly construed. Denox v. Berthel, 682 So.2d 300, (1996).
Exceptions & Exemptions
Remember that Article XII, Section 3, provides the right to inspect or examine public documents “except in cases established by law.” Therefore, much of the remainder of Chapter 1 of Title 44 is devoted to the numerous exceptions that the Legislature has established.
LSA-R.S. 44:2 exempts records involved in a legislative investigation.
Section 3 of Title 44 exempts most records of law enforcement agencies that pertain to pending criminal litigation that exists or may be reasonably anticipated. An exception to the exception is the initial arrest report (booking report) of a law enforcement officer who has arrested any person. If there is no longer any prospect of prosecution the investigative records must be produced by the law enforcement agency, because at that time the exemption will expire.
Section 4 contains about 5 pages of exceptions which relate to the exemption of the tax records, welfare applications, and applications and disciplinary activities of the many professional licensing boards.
Section 4.1 is a recent provision enacted by Act 882 of 2001. The object of this amendment was to consolidate all of the exceptions to the public records law, which were not included in Title 44 into a single section in Title 44. Section 4.1 enumerates the statutory citations of exceptions that are in other titles of the Revised Statutes. LSA-R.S. 44:4.1B (1) and provides in Section 4.1A that any exception not enumerated in Chapter 1 of Title 44 shall have no effect. Subsection C of Section 4.1 excepts “… writings, records, or other accounts that reflect the mental impressions, conclusions, opinions, or theories of an attorney or an expert, obtained or prepared in anticipation of litigation or in preparation for trial.
A federal court has held that the Louisiana Public Records Law does not require the disclosure of records shielded by the attorney client privilege. Texaco v. Louisiana Land and Exploration Company, 805 F.Supp. 385 (1992).
Remaining sections in Chapter 1 exempt, records in the custody of the Governor (Section 5), Hospital Records (Section 7), Records of violations of Municipal Ordinances (Section 9) Documents of the judiciary commission except the commission’s report filed with the Supreme Court (Section 10), certain personnel records (Section 11), medical records of public employees whose insurance is provided by the State Office of Group Benefits (Section 12), Circulation records of public libraries (Section 13), medical records pertaining to an individual public employee’s disability retirement (Section 15), Deferred Retirement Option Plan records of public employees (Section 16), Immunization Records (Section 17), Geophysical surveys furnished to the State Mineral Board (Section 18), “The Dale Earnhardt” provision exempting autopsy photos and videos (Section 19).
There is no statutory exemption relating to records in the custody of the judicial branch, however, in Bester v. Louisiana Supreme Court Committee on Bar Admissions 779 So.2d 715 (La. 2001), the Louisiana Supreme Court was faced with the issue of whether a person who had failed the bar exam was entitled to model answers and grading guidelines. The court acknowledged that there was no statutory exemption under the public records law, but stated that the court was not “. . . without authority to protect itself and its committees from being required to disclose sensitive documents. . .” The court held that as a separate branch of state government, it could exercise its inherent authority and that “in exercising its sovereign rulemaking authority, a state supreme court occupies the same position as that of a state legislature.”
Additionally, Article I, Section 5 of the Louisiana Constitution establishes the right to privacy so that persons are protected, not from all invasions of privacy, but only from “unreasonable” invasions of privacy. There are no legislative provisions that specifically define the parameters of this basic right, for the purposes of public records examinations, and the courts have been faced with the determination of the extent of the right to privacy in a paucity of cases. In those cases the courts have used the right of privacy guaranteed by Article I, Section 5 of the Constitution to limit this right to inspect public records. For example, the decision in Broderick v. State Dept. of Environmental Quality,, 761 So.2d 713 (2000), the First Circuit Court of Appeal held that grievance procedure filings by public employees, although not exempt from inspection by the Public Records Law, were exempt from inspection by the privacy provisions of Article I, Section 5. The court balanced the interests of privacy versus the right to examine public records in favor of the individual public employee’s right of privacy. In Trahan v. Larivee, 365 So.2d 294 (1979) the court held that privacy provisions exempted from inspection the performance evaluation of a public employee. In the original Trahan case, Trahan v. Larivee 359 So.2d 331, (1978), the court held that where the plaintiff was seeking to inspect a public employee’s performance evaluation report, there were three indispensable parties:
- The custodian;
- The supervisor of the employee who had written the report, and
- The employee who was the subject of the report.
(Compare: Hilbun v. State, ex rel. Division of Administration, 745 So.2d 1189 (1999), holding that the investigative report concerning the alleged improprieties of a state employee, which contained statements from co-employees, was not entitled to protection under the right of privacy.)
Examination of Records
Section 31 provides that any person may obtain a copy or reproduction of any public record, except as otherwise provided. A person over 18 has the right to inspect and copy or get a copy of a public record that is not exempt from examination, and the custodian has the burden of proving that the record is not subject to inspection. The person may apply in person to the custodian of the public body, to inspect, to copy or to reproduce a public record; however, in Elliot v. District Attorney of Baton Rouge, (1995) 664 So.2d. 122, the court opined that a person could make a request by letter.
In Elliot the plaintiff, an inmate in the state penitentiary, sought a copy of the file relating to his conviction, from the District Attorney. The request was made in writing by letter. The D.A. contended that the Public Records Law required the person to appear in person in the D.A.’s Office but the First Circuit Court of Appeal, in an opinion written by Judge Douglas Gonzales, a former Assistant District Attorney held:
“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. Access can be denied only when a law, specifically and unequivocally, provides otherwise. Title Research, 450 So.2d at 936.
There is no such law restricting or limiting the definition of the constitutional right to examine to mean only personal inspection. Moreover, LSA-R.S. 44:31 specifically broadens the right to examine to include copying, reproducing, and obtaining a reproduction. We find that mail-in requests for copies are permissible exercise of one’s right of access to the public records.”
The “custodian” is defined as the public officer or head of a public body that has custody or control of a public body or a representative specifically authorized by the head of a public body who responds to requests for inspection. (LSA-R.S. 44:1) When an in-person request is made, the only information that the custodian may obtain from the person requesting the record is his age and identification, but, he can be required to sign a register.
The custodian must give all reasonable aid and comfort to the person who desires to inspect public records. The inspection must occur during regular office hours unless otherwise authorized by the custodian. If the applicant seeks to examine records after working hours, he must pay the employee’s overtime pay in advance, and such after-hours inspection is subject to the custodian’s discretion.
The custodian may separate exempt matters from the public record and may observe the person who is exercising his right to inspect. Confidential items, exempt items, or items subject to the right of privacy, must be separated or excised to protect the individual’s rights. The custodian shall provide copies of public records at a reasonable charge unless the person is indigent. Indigents may be furnished records free of charge. When a record is requested and a question arises as to whether it is subject to inspection, the custodian must make a determination as to whether it is, or is not, subject to inspection, and must give the applicant a written certificate within 72 hours of the request to inspect.
The custodian has the duty to locate and segregate the record desired. However, if this is unreasonably burdensome, the custodian need only state, in writing, the general location of the record. If the record is immediately available, it must be presented. If it is not immediately available, it must be made available within three days. If records are being audited, they are subject, nevertheless, to inspection unless the specific document is in active use by the auditor. If the record is absent from the office, the custodian must give the applicant a certificate stating the reason for the absence, its location, who has the record, and when it was taken from the custodian. He must also answer – in the certificate – in detail, any questions posed by the applicant. (LSA-R.S. 44:34).
It should be emphasized that a statutory exemption of a public record (which is neither confidential nor exempt due to privacy) from the requirement of mandatory examination, does not prevent a custodian from making the record available for inspection, it merely allows him to deny a person the opportunity to have access.
Enforcement - Civil Action
Pursuant to LSA-R.S. 44:35, if an applicant has been denied the right to inspect a record by final determination of the custodian, or by the passage of five days from his request, he may file a civil suit for mandamus, injunction, or declaratory relief and may receive attorney’s fees, costs of court, and damages if his suit is successful. In Nungesser v. James H. Brown, Commissioner of Insurance, 664 So.2d 132, (1995), the plaintiff sought a list of cash investments of the Louisiana Insurance Guaranty Authority by written request. Brown replied that the data requested did not exist in the form requested. In the mandamus proceeding the district court ordered production of the record and imposed a civil penalty of $100 per day (about $5,000). Evidence showed that a list did not exist, although several documents did exist which, if taken together, would have been responsive to the plaintiff’s request. The First Circuit held that the plaintiff did not have to specifically name the type of document, but only needed to give the public record’s custodian a reasonable description. The court affirmed the award of the $100 per day in civil penalties; however, the Louisiana Supreme Court, at 667 So.2d 1036, granted Brown’s writ application and, apparently without briefs or oral argument, held that Brown was not required to produce a list that did not exist. The burden of proof is on the custodian to sustain his denial of the record. Any non-compliance with an order of the court may be punished as a contempt of court.
These civil actions are tried by preference over other civil cases on the court’s docket, and are to be expediently handled. If the applicant prevails in his case completely, the court must award reasonable attorney fees. If he prevails in part, the court, in its discretion, may award attorney’s fees. If the custodian is found to have acted arbitrarily or capriciously, the court may award actual damages. The custodian is personally liable for any damages awarded to the applicant, but is jointly liable with the public body for attorney’s fees and costs except where the custodian has withheld the documents on advice of counsel. If the custodian prevails, the court may, in its discretion, award attorney fees which shall be payable by the applicant.
Some public records are permanent records and must be kept for all time, such as the conveyance records of real estate transactions at the parish clerk of court’s office. (LSA-R.S. 44:36). The general rule for non-permanent records is that the record must be kept for three years; however, this does not prohibit a custodian from microfilming records within the three year period. In some cases of state records, the state archivist may establish a record maintenance schedule in excess of the three-year requirement where maintenance beyond 3 years is deemed necessary.