Joshua B. Archote v. William F. Tate IV, in his official capacity as president and custodian of records for Louisiana State University Agricultural and Mechanical College

STATE OF LOUISIANA
COURT OF APPEAL

FIRST CIRCUIT

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2023 CA 0982

JOSHUA B. ARCHOTE
VERSUS

WILLIAM F. TATE, IV, IN HIS OFFICIAL CAPACITY AS
PRESIDENT & CUSTODIAN OF RECORDS FOR LOUISIANA
STATE UNIVERSITY AGRICULTURAL & MECHANICAL
COLLEGE

ape JUN 0 3 2024

JUDGMENT RENDERED:

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Appealed from the Nineteenth Judicial District Court
Parish of East Baton Rouge * State of Louisiana
Docket Number C727489 « Sec. 23

The Honorable Kelly Balfour, Presiding Judge
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Virginia Hamrick COUNSEL FOR APPELLANT
Katie M. Schwartzmann PLAINTIFF—Joshua B. Archote
Melia Cerrato, Student Attorney

Tulane First Amendment Law Clinic

New Orleans, Louisiana

Mark L. Barbre COUNSEL FOR APPELLEE

Christen C. Triche DEFENDANT-—William F. Tate, IV,
Michael A. Patterson in his Official Capacity as President
Baton Rouge, Louisiana and Custodian of Records for

Louisiana State University
Agricultural & Mechanical College

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BEFORE: WELCH, LANIER, WOLFE,
GREENE, AND STROMBERG, JJ.

He a. disseuts without réasens.

WELCH, J.

In this mandamus proceeding, the plaintiff, Joshua B. Archote, appeals a
judgment in favor of the defendant, William F. Tate IV, in his official capacity as
president and custodian of records for Louisiana State University Agricultural and
Mechanical College (“the Records Custodian”), sustaining the Records Custodian’s
peremptory exception raising the objection of res judicata and dismissing Mr.
Archote’s petition. Also before this Court is a motion to dismiss Mr. Archote’s
appeal filed by the Records Custodian. For reasons that follow, we deny the motion
to dismiss, reverse the judgment of the trial court, and remand for further
proceedings.

BACKGROUND

On September 29, 2022, Mr. Archote sent a public records request to
Louisiana State University Agricultural and Mechanical College (“LSU”) pursuant
to the provisions of the Public Records Law, La. R.S. 44:1, et seq. Therein, Mr.
Archote sought the following:

Records related to an internal investigation of former LSU assistant

director of Greek Life, Donald Abels, that took place within the

Interfraternity Council or any other LSU_ offices. The internal

investigation would have taken place between August 2019 and August

2021. Note: I am not requesting the LSU Police report related to Abels’

misconduct. LSU Police recommended after their investigation that an
internal investigation take place.!!!

! Generally, as long as the purpose is legal, a person’s purpose or motive for making a public
records request is immaterial and may not be inquired about by the custodian of those records. See
La. R.S. 44:31 and 32; Angelo Iafrate Construction, L.L.C. v. State, Department of
Transportation and Development, 2003-0892 (La. App. 1° Cir. 5/14/04), 879 So.2d 250, 260,
writ denied, 2004-1442 (La. 9/24/04), 882 So.2d 1131; Webb v. City of Shreveport, 371 So.2d
316, 320 (La. App. 2™ Cir.), writ denied, 374 So.2d 657 (La. 1979). However, for information
purposes, we note that, according to the allegations of Mr. Archote’s petition for writ of
mandamus, Donald Abels was the former assistant director of Greek Life at LSU, and during his
employment at LSU, he was accused of utilizing a restricted-access LSU student database to create
a profile for a fake Greek Life recruit, creating fake social media accounts and a false LSU ID
number, and then using that fictitious identity to entrap fraternity members on violations of LSU
policies and drinking laws. The petition for writ of mandamus further alleged that “LSU Police
conducted an investigation into the allegations against [Mr.] Abels and concluded that he had
‘initiated a scheme (catfishing) to entrap fraternities in inappropriate behavior with recruits[,]’”
and that “LSU Police concluded that [Mr.] Abels’ alleged conduct was not criminal in nature and
referred the matter for internal investigation by LSU.” Mr. Archote, a student at LSU and the
Editor-in-Chief of LSU’s student newspaper, Reveille, sought to write a news story for Reveille

2

If you contend that some of the records I have requested are exempt

from disclosure, I request that you redact or segregate any information

or records you contend are exempt, but that you make available to me

all other requested records or portions thereof that you do not contend

are exempt. I also request that you inform me in writing whether you

are withholding any information or record, that you describe the records

or information withheld, and that you advise me as specifically as
possible of the basis for any claim or exemption.

Later that same day, LSU responded to Mr. Archote’s public records request

as follows:

This email is to respond to your Public Records Request made in your
e-mail ... pursuant to Louisiana Public Records Law.

The records you seek are not subject to public record [sic]. The court
ruled on this matter on March 8, 2022 in the case of McMakin v. LSU,
Docket No. 709,240, Div. 29, 19th Judicial District Court.

This communication concludes LSU’s response to your Public Records
Request. LSU requests that you acknowledge receipt of this email.

Thereafter, on January 9, 2023, Mr. Archote commenced these proceedings
seeking a writ of mandamus directed to the Records Custodian to make the requested
records available (or to show cause to the contrary), an award of reasonable
attorney’s fees and costs pursuant to La. R.S. 44:35(D), and an award of damages
and civil penalties pursuant to La. R.S. 44:35(E).

In response to the petition for writ of mandamus, the Records Custodian filed
a peremptory exception raising the objection of res judicata. Therein, the Records
Custodian noted that Mr. Archote was seeking the production of employment
records for a “rank-and-file” LSU employee under the Public Records Law and that
a public records request for the exact same employment records from LSU had been
denied the previous year in a different proceeding entitled McMakin v. LSU, bearing

docket number 709,240, Div. 29, in the 19" Judicial District Court (“the MeMakin

about LSU’s internal investigation into and response to Mr. Abels’ conduct and whether Mr.
Abels’ conduct was in violation of LSU’s internal policies.

2 Mr. Archote attached a copy of his public records request and LSU’s response to his petition for
writ of mandamus.

suit”). Based on the judgment in the McMakin suit, the Records Custodian argued
that res judicata barred Mr. Archote from re-litigating the same issues on the same
documents against the same defendant. Attached to the objection of res
judicata/supporting memorandum was a copy of the petition for writ of mandamus
and a copy of the judgment from the McMakin suit.
The petition for writ of mandamus in the McMakin suit was filed on July 1,
2021. According to the allegations of that petition, on June 14, 2021, the plaintiff
therein, Dixon McMakin, made a public records request for “records for an internal
investigation performed by Human Resources on LSU employee Donald Abels” with
“{s]aid internal investigation [being] cited per LSU Police Investigator John Meliet
U2286 for Case 20190820-008.” On that same date, following receipt of Mr.
McMakin’s request, LSU responded: “[f]he records ... you seek are not subject to
public disclosure pursuant to [East Bank Consolidated Special Service Fire
Protection District v. Crossen, 2004-0838 (La. App. 5™ Cir. 12/28/04), 892 So.2d
666, writ denied, 2005-0212 (La. 4/1/05), 897 So.2d 608].” Accordingly, Mr.
McMakin sought a writ of mandamus compelling the then custodian of records for
LSU to make the requested records available for inspection or copying (or to show
cause to the contrary).
The judgment in the McMakin suit was rendered on March 8, 2022 (after a
hearing) and signed by the trial court on April 19, 2022. Therein the trial court’

99 46

determined that after “the weighing of constitutional interests,” “the employee’s
privacy interest and non-disclosure of the requested documents” outweighed the

public’s interest in disclosure of the requested documents.’ Therefore, Mr.

McMakin’s request for a writ of mandamus was denied.

3 We note that the presiding judge in the McMakin suit is the same judge who presided over this
proceeding.

4 According to the record, Mr. Abels left his employment with LSU in August 2021 and was hired
by Sewanee: The University of the South (“Sewanee”) approximately a month later. Thus, at the

4

The Records Custodian also filed an opposition’ to Mr. Archote’s petition for
writ of mandamus. In the opposition to the writ of mandamus, the Records
Custodian urged the trial court to reach the same determination as the McMakin suit,
i.e. that the records were not subject to disclosure because Mr. Abels’ constitutional
right to privacy under the United States Constitution and Article I, Section 5 of the
Louisiana Constitution were superior to and outweighed Mr. Archote’s and the
public’s interest in disclosing those records.°

Mr. Archote filed an opposition to the objection of res judicata, arguing that
the Records Custodian could not meet his burden of establishing that res judicata
barred his action because: Mr. Archote’s lawsuit involved different parties from the
McMakin suit; Mr. Archote’s cause of action did not exist at the time of the McMakin
suit; and Mr. Archote’s lawsuit arose from a different transaction or occurrence than
the McMakin suit.

A hearing on Mr. Archote’s petition for writ of mandamus and the Records
Custodian’s objection of res judicata was scheduled for February 23, 2023. Prior to
the hearing, Mr. Archote and the Records Custodian entered into a partial stipulation
regarding facts and the authenticity and admissibility of documents for the purpose

of streamlining the presentation of evidence and argument at the hearing.

time of Mr. McMakin’s public records request, Mr. Abels was still an LSU employee; however,
at the time of the hearing and rendition and signing of the judgment in the McMakin suit, Mr. Abels
was no longer an LSU employee.

> Although the Records Custodian captioned his responsive pleading as an “opposition,” La. C.C.P.
art. 3783 requires that a written answer be filed in response to a petition for writ of mandamus.

° Because the trial court sustained the Records Custodian’s objection of res judicata, the issues
raised in the Records Custodian’s opposition with regard to Mr. Abels’ constitutional right to
privacy were not addressed by the trial court, and thus, are not at issue in this appeal. However,
we note that Mr. Archote argued that since the rendition of the judgment in the McMakin suit, Mr.
Abels waived his constitutional right to privacy regarding those records because Mr. Abels gave
an interview to the student newspaper at Sewanee, The Sewanee Purple, in which he discussed
LSU’s internal investigation, claimed that he had been exonerated, and provided an email to The
Sewanee Purple between himself and an LSU Human Resources employee, Jennifer Doolos
Normand, about the investigation.

With regard to facts, the parties stipulated to the following: (1) LSU Office of
Human Resource Management conducted an investigation into the conduct of Mr.
Abels addressed in the police report for Incident Number 20190820-008; (2) Mr.
Abels was a public employee of LSU at the time of the investigation; (3) Mr. Abels
was no longer an employee in September 2022; (4) the records related to LSU Office
of Human Resource Management’s investigation were maintained in Mr. Abels’
employee file; (5) LSU Policy Statement 40’ was in effect at all times pertinent to
Mr. Abels; and (6) the Court rendered judgment in favor of LSU in the McMakin
suit.

With regard to documents, the parties stipulated to the authenticity and
admissibility of the following, which were attached thereto: (1) LSU Police
Department Report, Incident No. 20190820-008 dated June 4, 2021; (2) LSU’s
denial of Mr. Archote’s public records request dated September 29, 2022; (3) Mr.
McMakin’s public records request from the McMakin suit for “records for an internal
investigation performed by Human Resources on LSU Employee Donald Abels”
dated June 14, 2021; (4) LSU’s denial of Mr. McMakin’s public records request
from the McMakin suit; (5) Mr. Archote’s public records request to LSU dated
October 7, 2022, for emails sent from Jennifer Doolos Normand’s LSU email
address on August 26, 2022;° (6) LSU Policy Statement 40; and (7) the judgment in
the McMakin suit.

After a hearing on February 23, 2023, which consisted of argument of counsel
and the Records Custodian offering into evidence the exhibits attached to its
objection, the trial court sustained the objection of res judicata filed by the Records

Custodian and dismissed Mr. Archote’s petition for writ of mandamus. A judgment

7 LSU Policy Statement 40 was entitled “CONFIDENTIALITY OF PERSONNEL RECORDS OF
UNIVERSITY EMPLOYEES.”

8 See footnote 6.

in accordance with the trial court’s ruling was signed on March 9, 2023 ” Thereafter,
Mr. Archote filed a motion for new trial, which the trial court denied pursuant to a
judgment signed on May 19, 2023. Mr. Archote now appeals.

On appeal, Mr. Archote contends that the trial court erred in sustaining the
Records Custodian’s objection of res judicata pursuant to La. C.C.P. art. 927(A)(3)
because, as a matter of law, res judicata does not apply and further, the Records
Custodian did not offer proof of all elements of res judicata as required by law.

MOTION TO DISMISS

In response to Mr. Archote’s appeal, the Records Custodian has filed a motion
to dismiss the appeal. Therein, the Records Custodian argued that in Mr. Archote’s
motion for appeal (and in his statement of jurisdiction in his appellate brief to this
Court), he references his appeal as being from the May 19, 2023 judgment, which
denied his motion for a new trial and was a non-appealable interlocutory judgment,
rather than the March 9, 2023 final judgment of dismissal. Therefore, the Records
Custodian claims that this Court lacks appellate jurisdiction to review that judgment.
In addition, the Records Custodian claims that Mr. Archote’s appeal of the
interlocutory judgment should not be converted to an application for supervisory
writs because Mr. Archote’s motion for appeal was filed more than thirty days after
the notice of judgment on the motion for new trial, reversal of the trial court’s
decision will not terminate the litigation, and there is no clear error in the trial court’s
judgment. Accordingly, the Records Custodian contends that this Court should
dismiss Mr. Archote’s appeal and decline to convert it to an application for

supervisory writs.

° We note that the March 9, 2023 judgment of the trial court specifically provided: “IT IS
FURTHER ORDERED, ADJUDGED[,] AND DECREED that [Mr. Archote’s] “Petition for
Writ of Mandamus is DISMISSED.” This judgment of dismissal did not indicate whether
dismissal of the petition was with or without prejudice. When a judgment is silent as to whether
the suit is being dismissed with or without prejudice, the dismissal must be without prejudice.
Collins v. Ward, 2015-1993 (La. App. 1 Cir. 9/16/16), 204 So.3d 235, 239. Therefore, the
dismissal of Mr. Archote’s petition for writ of mandamus was without prejudice.

7

We recognize that Mr. Archote’s motion for appeal does reference the May
19, 2023 judgment, which denied his motion for new trial, rather than the March 9,
2023 judgment sustaining the objection of res judicata and dismissing his petition
for writ of mandamus. We also recognize that a judgment denying a motion for new
trial is an interlocutory order and is normally not appealable. See La. C.C.P. art.
2083(C). However, when a motion for appeal refers by date to a judgment denying
a motion for new trial, but the circumstances indicate from the appellant’s brief that
the appellant actually intended to appeal from the final judgment on the merits, the
appeal should be maintained as being taken from the final judgment on the merits
rather than the judgment denying the motion for new trial. Miller v. Albertson’s
Companies, LLC, 2023-0527 (La. App. 1° Cir. 12/27/23), 381 So.3d 84, 88; Byrd
v. Pulmonary Care Specialists, Inc., 2016-0485 (La. App. 1% Cir. 12/22/16), 209
So.3d 192, 195,!°

Herein, although Mr. Archote referenced the May 19, 2023 judgment on the
motion for new trial in his motion for appeal and his statement of jurisdiction in his
brief to this Court, it is clear from Mr. Archote’s appellate brief that he intended to
appeal the judgment sustaining the Records Custodian’s objection of res judicata
and the dismissal of his petition for writ of mandamus. More specifically, all of Mr.
Archote’s assignments of error and the arguments briefed in support thereof focus
exclusively on the trial court’s decision to sustain the objection of res judicata; Mr.
Archote raises no assignments of error or arguments related to the trial court’s
decision to deny his motion for new trial. Therefore, Mr. Archote’s mistake in listing

the date of the wrong judgment in his motion for appeal and statement of jurisdiction

10 See also Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826,
828-829 (1969); Fruehauf Trailer Co. v. Baillio, 252 La. 181, 190, 210 So.2d 312, 314 (1968);
Thomas v. Comfort Center of Monroe, LA, Inc., 2010-0494 (La. App. 1* Cir. 10/29/10), 48
So.3d 1228, 1233; Carpenter v. Hannan, 2001-0467 (La. App. 1% Cir. 3/28/02), 818 So.2d 226,
228-229, writ denied, 2002-1707 (La. 10/25/02), 827 So.2d 1153; Reno v. Perkins Engines, Inc.,
98-1686 (La. App. 1* Cir. 9/24/99), 754 So.2d 1032, 1033, writ denied, 99-3058 (La. 1/7/00), 752
So.2d 863; Dural v. City of Morgan City, 449 So.2d 1047, 1048 (La. App. 1* Cir. 1984).

8

is insufficient grounds for the dismissal of his appeal, particularly since appeals are
favored and will be dismissed only when the grounds are free from doubt. See Byrd,
209 So.3d at 195. Thus, we will treat Mr. Archote’s appeal as an appeal of the March
9, 2023 judgment. Accord Byrd, 209 So.3d at 195; see also Miller, 381 So.3d at
88."

LAW AND DISCUSSION

Res judicata is designed to promote judicial efficiency and final resolution of
disputes, and generally precludes the re-litigation of claims arising out of the same
facts and circumstances between the same parties of a previous suit in which there
is a valid, final judgment. Sutton v. Adams, 2022-01672 (La. 3/7/23), 356 So.3d
1038, 1042; Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La. 7/2/96), 676 So.2d
1077, 1079. The doctrine of res judicata is stricti juris; any doubt concerning the
applicability of the principle must be resolved against its application. Sutton, 356
So.3d at 1042.

Res judicata may be raised by peremptory exception. See La. C.C.P. art.
927(A)(3). The burden of proving the facts essential to support the peremptory
exception raising the objection of res judicata is on the party pleading the objection.
Jefferson v. Board of Supervisors of Southern University and Agricultural and
Mechanical College, 2021-0716 (La. App. 1* Cir. 3/3/22), 341 So.3d 603, 607.
When an objection of res judicata is raised before the case is submitted and evidence
is received on the objection, the standard of review on appeal is traditionally
manifest error with regard to factual findings of the trial court. Mitchell v. Aaron’s,

Inc., 2018-0131 (La. App. 1* Cir. 9/21/18), 257 So.3d 812, 814. However, the res

'l Since Mr. Archote’s appellate delays on the March 9, 2023 judgment did not begin to run until
notice of the May 19, 2023 judgment denying his motion for new trial, Mr. Archote’s motion for
appeal, filed on July 12, 2023, is timely with respect to an appeal of the March 9, 2023 judgment.
See La. C.C.P. arts. 1914, 1971 and 2087.

judicata effect of a prior judgment is a question of law that is reviewed on appeal de

novo. Id.

Louisiana Revised Statutes 13:4231 sets forth the general principles for res

judicata as follows:

Except as otherwise provided by law, a valid and final judgment
is conclusive between the same parties, except on appeal or other direct
review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action
existing at the time of final judgment arising out of the transaction or

occurrence that is the subject matter of the litigation are extinguished
and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action

existing at the time of final judgment arising out of the transaction or

occurrence that is the subject matter of the litigation are extinguished

and the judgment bars a subsequent action on those causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is

conclusive, in any subsequent action between them, with respect to any

issue actually litigated and determined if its determination was essential

to that judgment.['*]

Under this statute, the Louisiana Supreme Court has emphasized that all of
the following elements must be satisfied in order for res judicata to preclude a
second action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are
the same; (4) the cause or causes of action asserted in the second suit existed at the
time of final judgment in the first litigation; and (5) the cause or causes of action
asserted in the second suit arose out of the transaction or occurrence that was the
subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385 (La.
2/25/03), 843 So.2d 1049, 1053.

In support of his objection of res judicata, the Records Custodian pointed to

the petition and the judgment in the McMakin suit, arguing that the McMakin

judgment was a valid and final judgment, that the records sought in Mr. Archote’s

'2 There are exceptions to the general rule of res judicata, which are set forth in La. R.S. 13:4232.
Because we find, for reasons detailed herein, that res judicata is not applicable to this case, we
need not address whether one of the exceptions set forth in La. R.S. 13:4232 applies.

10

public records request were the same as those addressed by the trial court in the
McMakin suit, and that Mr. Archote’s interests were adequately represented in the
McMakin suit. Therefore, the Records Custodian contended, and the trial court
found, that that the judgment in the McMakin suit barred Mr. Archote’s action under
res judicata.

On appeal, Mr. Archote argues that the third element (the parties are the same
or “identity of parties”), the fourth element (the cause or causes of action asserted
in the second suit existed at the time of final judgment in the first litigation), and the
fifth element (the cause or causes of action asserted in the second suit arose out of
the transaction or occurrence that was the subject matter of the first litigation) are
lacking with respect to the judgment in the McMakin suit. Thus, he contends that
res judicata is inapplicable.

The determination of whether these elements exist herein requires a review of
the right to public records under the law. Article XII, Section 3 of the Louisiana
Constitution provides that “[n]o person shall be denied the right to ... examine public

99

documents, except in cases established by law.” Moreover, the right of access to
public records guaranteed under this provision is a fundamental right, and 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. New Orleans
Bulldog Society v. Louisiana Society for the Prevention of Cruelty to Animals,
2016-1809 (La. 5/3/17), 222 So.3d 679, 683; Landis v. Moreau, 2000-1157 (La.
2/21/01), 779 So.2d 691, 694. The Louisiana Legislature codified this right in the
Public Records Law, La. R.S. 44:1, et seq.

Louisiana Revised Statutes 44:1(A)(2)(a) defines “public records” as:

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 electronically

11

stored information or information contained in databases or 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, ... except

as otherwise provided in this Chapter or the Constitution of Louisiana.

The right to examine records under the Public Records Law is set forth in La.
R.S. 44:31(B)(1) and (2), which provides that “any person ... may inspect, copy, or
reproduce any public record” or “obtain a copy or reproduction of any public
record.” Furthermore, La. R.S. 44:31(A) and (B)(3) establish that “[p]roviding
access to public records is a responsibility and duty of the ... custodian” of those
records and that “[t]he burden of proving that a public record is not subject to
inspection, copying, or reproduction ... rest[s] with the custodian.”

The legislature, in the Public Records Law, sought to guarantee, in the most
expansive and unrestricted way possible, the right of the public to inspect and
reproduce those records that the laws deem public. Angelo Iafrate Const., L.L.C.
v. State ex rel. Dept. of Transp. and Development, 2003-0892 (La. App. 1° Cir.
5/14/04), 879 So.2d 250, 254, writ denied, 2004-1442 (La. 9/24/04), 882 So.2d 1131.
There was no intent on the part of the legislature to qualify, in any way, the right of
access. As with the constitutional provision, the Public Records Law should be
construed liberally, and any doubt must be resolved in favor of the right of access.
Id.; Landis, 779 So.2d at 694-695.

The right of access to public records is fundamental; therefore, access may be
denied only when the law specifically and unequivocally denies access. Hilliard v.
Litchfield, 2001-1987 (La. App. 1* Cir. 6/21/02), 822 So.2d 743, 746. All

exceptions, exemptions, and limitations to the laws pertaining to public records and

their disclosure pursuant to the Public Records Law must be provided for in the

12

Public Records Law or the Constitution. See La. R.S. 44:4.1; Angelo Iafrate
Construction, L.L.C., 879 So.2d at 254. Therefore, it follows that any exception,
exemption, or limitation to the Public Records Law is in derogation of the public’s
right to be reasonably informed and must be narrowly interpreted. Jd; Times
Picayune Publishing Corp. v. Board of Supervisors of Louisiana State
University, 2002-2551 (La. App. 1* Cir. 5/9/03), 845 So.2d 599, 605, writ denied,
2003-1589 (La. 9/5/03), 852 So.2d 1044.

The Public Records Law requires the custodian to present any public record
to any person of the age of majority who so requests. La. R.S. 44:32(A). Public
records must generally be made available “immediately”; however, the Public
Records Law recognizes that some reasonable delay may be necessary to compile,
review, and, when necessary, redact or withhold certain records that are not subject
to production. See La. R.S. 44:33; Roper v. City of Baton Rouge/Parish of East
Baton Rouge, 2016-1025 (La. App. 1% Cir. 3/15/18), 244 So.3d 450, 459, writ
denied, 2018-0854 (La. 9/28/18), 252 So.3d 926. However, within five business
days of the request, the custodian must provide a written “estimate of the time
reasonably necessary for collection, segregation, redaction, examination, or review
of a records request.” See La. R.S. 44:35(A); Roper, 244 So.3d at 459-460.

In any case wherein “a record is requested and a question is raised by the
custodian of the record as to whether it is a public record,” the “custodian shall
within five 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.” La. R.S. 44:32(D).
“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.” Jd.

13

Enforcement of the Public Records Law is governed primarily by La. R.S.
44:35. Louisiana Revised Statutes 44:35(A) provides that “[a]ny person who has
been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction
of a record under the [Public Records Law,] ... either by a determination of the
custodian or by the passage of five days, ... may institute proceedings for the
issuance of a writ of mandamus, injunctive or declaratory relief, together with
attorney fees, costs and damages ... in the district court for the parish in which the
office of the custodian is located.”

In the McMakin suit (and ultimately in this suit), the exception or exemption
to the Public Records Law at issue is the constitutional prohibition against
unreasonable invasions of privacy, as set forth in Article I, Section 5 of the Louisiana
Constitution, which is commonly referred to as the constitutional right to privacy.
When a custodian of a public record asserts an individual’s constitutional right to
privacy as the basis of an exception, exemption, or limitation to the public’s right to
access public records, the custodian or the individual claiming the privacy right must
prove that there is a reasonable expectation of privacy against disclosure of the
information to a person entitled to access the public information. Angelo Iafrate
Construction, L.L.C., 879 So.2d at 255. If, and only if a reasonable expectation of
privacy is found, the court must weigh or balance the public records disclosure
interest against the privacy interest. Jd. Such balancing is done by the court on a
case-by-case basis and depends on the particular facts and circumstances involved.
City of Baton Rouge/Parish of East Baton Rouge v. Capital City Press, L.L.C.,
2007-1088 (La. App. 1* Cir. 10/10/08), 4 So.3d 807, 819.

With these precepts in mind, we turn to a discussion of the first element of res
judicata at issue in this appeal, i.e. whether the parties are the same. It is undisputed
that Mr. Archote was not physically a party to the McMakin suit. However, the

Records Custodian argues that this element of res judicata does not require the

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parties to be physically the same, but only requires that the parties be of the same
capacity or quality. The Records Custodian claims that Mr. Archote and Mr.
McMakin have the same capacity and quality because they had the same interest—
advancing the public’s interest in the disclosure of public records—and therefore,
they should be treated as the same party for purposes of res judicata. Mr. Archote
contends that he and Mr. McMakin do not share the same capacity or quality, there
is no legal relationship between them, and the mere fact that they sought public
records regarding the same person is insufficient to establish an identity of parties.
We agree.

For purposes of res judicata, an identity of parties exists whenever the same
parties, their successors, or others appear, so long as they share the same quality as
parties. Capitol One, N.A. v. Service Door & Millwork, LLC, 2011-0691 (La.
App. 1° Cir. 11/9/11), (unpublished) 2011 WL 5420374, *3 (citing Mandalay Oil
& Gas, L.L.C. v. Energy Development Corporation, 2001-0993 (La. App. 1* Cir.
8/4/04), 880 So.2d 129, 140, writ denied, 2004-2426 (La. 1/28/05), 893 So.2d 72).
Thus, the jurisprudence does not require that the parties in the two lawsuits be
physically identical as long as they share the same quality as parties. Capitol One,
N.A., 2011 WL 5420374, *3(citing Welch v. Crown Zellerbach Corporation, 359
So.2d 154, 156 (La. 1978), and Jensen Construction Company v. Department of
Transportation and Development, 542 So.2d 168, 171 (La. App. 1“ Cir.), writ
denied, 544 So.2d 408 (La. 1989)). In considering whether an identity of parties
exists for res judicata purposes, the preclusive effect of a judgment binds the parties
to the action, as well as those nonparties who are deemed “privies” of the parties in
circumstances where “the nonparty’s interests were adequately represented by a
party to the action, who may be considered the ‘virtual representative’ of the
nonparty, because the interests of the party and the nonparty are so closely aligned.”

Mandalay, 880 So.2d at 142. Furthermore, because res judicata is to be strictly

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construed, any doubt as to this element must be resolved against application of res
judicata. See Five N Company, L.L.C. v. Stewart, 2002-0181 (La. App 1* Cir.
7/2/03), 850 So.2d 51, 61.

We recognize, as pointed out by the Records Custodian, that there is a public
interest in the disclosure of public records and that Mr. McMakin (in the McMakin
suit) and Mr. Archote (in this suit) are advancing that interest. However, we cannot
say that Mr. McMakin and Mr. Archote have the same capacity/quality or that Mr.
Archote should be deemed a privy of Mr. McMakin such that they should be treated
as the same party for purposes of res judicata. In the McMakin suit, Mr. McMakin
filed suit to enforce his individual right under the Louisiana Constitution and Public
Records Law! to examine certain public records regarding Mr. Abels. LSU
maintained that those records were not subject to disclosure based on Mr. Abels’
constitutional right to privacy and had to prove that Mr. Abels had a reasonable
expectation of privacy against disclosure of that information to a person entitled
access to that public information, ie. Mr. McMakin. See Angelo Iafrate
Construction, L.L.C., 879 So.2d at 255. Following the trial court’s apparent
determination that Mr. Abels had a reasonable expectation of privacy, the court then
weighed or balanced the public records disclosure interest against the privacy
interest of Mr. Abels. See Jd. Notably, this balancing is done by the court on a case-
by-case basis and depends on the particular facts and circumstances involved. See
City of Baton Rouge/Parish of East Baton Rouge, 4 So.3d at 819.

In this proceeding, Mr. Archote filed suit to enforce his individual right under

the Louisiana Constitution and Public Records Law to examine certain public

'3 See La. Const. art. XII, §3 (providing that “[n]Jo person shall be denied the right to ... examine
public documents, except in cases established by law”) and La. R.S. 44:35(A) (providing that
“alny person who has been denied the right to inspect, copy, reproduce or obtain a copy of
reproduction of a record under the [Public Records Law,] ... may institute proceedings for issuance
of a writ of mandamus, injunctive or declaratory relief ...”).

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records regarding Mr. Abels.'* Again, as evidenced by his opposition, the Records
Custodian maintains that those records are not subject to disclosure based on Mr.
Abels’ constitutional right to privacy. Therefore, the Records Custodian will have
to prove that Mr. Abels had a reasonable expectation of privacy against disclosure
of that information to a person entitled access to that public information, i.e. Mr.
Archote. See Angelo Iafrate Construction, L.L.C., 879 So.2d at 255. If, and only
if, it is determined that Mr. Abels has a reasonable expectation of privacy, the court
would then weigh or balance the public records disclosure interest against the
privacy interest of Mr. Abels, including whether Mr. Abels has now waived that
privacy interest.!° See Jd. Again, this must be done on a case-by-case basis and
depends on the particular facts and circumstances involved. See City of Baton
Rouge/Parish of East Baton Rouge, 4 So.3d at 819.

Thus, Mr. McMakin and Mr. Archote, through their respective suits, were
enforcing their individual constitutional and statutory right to examine public
records. While Mr. Archote is seeking access to the same public records regarding
Mr. Abels that Mr. McMakin sought and was denied access, we find their common
interest in obtaining public records concerning Mr. Abels insufficient to establish
that their interests are so closely aligned that Mr. Archote was a privy of Mr.
McMakin in the McMakin suit or that Mr. McMakin would have adequately
represented Mr. Archote’s interest in obtaining those the public records in this suit.
Further, any doubt must be resolved against such a finding. Indeed, the exception
or exemption to the Public Records Law upon which LSU and the Records
Custodian rely to deny access to the public records concerning Mr. Abels is
evaluated on a case-by-case basis and depends on the particular facts and

circumstances involved. Mr. McMakin, in enforcing his individual interest in

4 See footnote 13.

'5 footnote 6.

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obtaining public records and in establishing the particular facts and circumstances
involved with his case, could not have adequately represented Mr. Archote’s future
interest in enforcing Mr. Archote’s individual right to public records or the particular
future facts and circumstances involved in Mr. Archote’s case, including whether
Mr. Abels waived his constitutional right to privacy following rendition of the
judgment in the McMakin suit, as Mr. Abels’ waiver of his constitutional right was
not at issue in the McMakin suit.’ Accordingly, we must conclude that the parties
to the judgment in the McMakin suit are not the same parties in this suit—physically
or in the same capacity or quality—and thus, this necessary element of res judicata
is lacking herein.

Therefore, based on our review of the stipulations of the parties and evidence
offered by the Records Custodian in support of his objection of res judicata, we find
that the parties in this action are not the same parties in the McMakin suit. Absent
this necessary element, res judicata is not applicable herein so as to bar Mr.
Archote’s petition for writ of mandamus.'’ Therefore, we must conclude that the
trial court improperly sustained the Records Custodian’s objection of res judicata
and dismissed Mr. Archote’s petition for writ of mandamus. Accordingly, we
reverse the judgment of the trial court and remand this matter for further proceedings
on Mr. Archote’s petition for writ of mandamus.

CONCLUSION
For all of the above and foregoing reasons, the motion to dismiss the appeal

filed by William F. Tate IV, in his official capacity as president and custodian of

16 See footnote 6.

'7 Since all of the necessary elements of res judicata must be satisfied in order for res judicata to
apply, we need not address whether any of the other necessary elements exist herein. See
Burguieres, 843 So.2d at 1053; LaBarre v. Occidental Chemical Co., 2023-0139 (La. App. 1*
Cir. 9/28/23), 376 So.3d 896, 902; OAT Trustee, LLC v. Elite Investment Group, 2022-0804
(La. App. 1* Cir. 2/9/23), 2023 WL 1945426, *7 (unpublished); and Jeff Mercer, L.L.C. v.
Austin Bridge and Road, LP, 2022-0423 (La. App. 1* Cir. 11/4/22), 354 So.3d 710, 714-15.

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records for Louisiana State University Agricultural and Mechanical College, is

denied. In addition, the March 9, 2023 judgment of the trial court, sustaining the
peremptory exception raising the objection of res judicata filed by William F. Tate
IV, in his official capacity as president and custodian of records for Louisiana State
University Agricultural and Mechanical College, and dismissing the petition for writ
of mandamus filed by Joshua B. Archote is reversed, and this matter is remanded for
further proceedings.

All costs of this appeal in the amount of $1,434.00 are assessed to the
defendant/appellee, William F. Tate IV, in his official capacity as president and
custodian of records for Louisiana State University Agricultural and Mechanical
College.

MOTION TO DISMISS DENIED; JUDGMENT REVERSED; REMANDED.

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