Richard J. Heath v. City of Alexandria, Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 09-28

RICHARD J. HEATH

VERSUS

CITY OF ALEXANDRIA, LOUISIANA

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 230,927
HONORABLE HARRY FRED RANDOW, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

REVERSED.

Gregory R. Aymond
Attorney at Law
P. O. Box 5503
Alexandria, LA 71307-5503
(318) 445-3618
Counsel for Plaintiff/Appellant:
Richard J. Heath

Lewis Olivier Lauve, Jr.
Bussey & Lauve
P. O. Box 307
Alexandria, LA 71309-0307
(318) 449-1937
Counsel for Defendant/Appellee:
City of Alexandria, Louisiana

SAUNDERS, Judge.

FACTS AND PROCEDURAL HISTORY:

This appeal arises from a judgment of the Ninth Judicial District Court , which

denied Richard J. Heath’s (hereinafter “Heath”) application for a writ of mandamus

and petition for statutory penalties and attorney fees in connection with a public

records request to the City of Alexandria (hereinafter “Alexandria”).

On January 25, 2008, Heath made both oral and written requests to Alexandria

for certain public records. Heath requested city council resolutions and any

documents authorizing the city attorney to file suit on behalf of Alexandria. Heath

also requested any records authorizing a city official to sign for pay types. Donna

Jones (hereinafter “Jones”), the public records custodian for Alexandria, was unsure

whether the records Heath sought were public records, because, at the top of Heath’s

request, he made reference to an ongoing lawsuit between himself and Alexandria.

Jones referred Heath to Charles E. Johnson, Jr. (hereinafter “Johnson”), the

Alexandria City Attorney. Johnson called Heath and recommended that Heath seek

the requested documents through discovery, rather than through a public records

request. Neither Jones nor Johnson ever provided Heath with a final determination,

in writing, as to his right to inspect or copy the requested records.

Heath filed suit asserting his right to inspect the requested documents under the

Public Records Act, La.R.S. 44:1-44, on March 14, 2008. After suit was filed,

Johnson faxed two of the requested records to Heath’s attorney, later testifying that

he “thought that it was ridiculous for a lawsuit to be filed over a council resolution

and a job description.” Johnson acknowledged that these records, while sometimes

copied and filed in relation to ongoing litigation, are also generally kept as part of

Alexandria’s public records.

In its reasons for judgment, the trial court did not address Alexandria’s failure

to timely allow Heath access to the requested records or the lack of a final written

determination concerning Heath’s right of access to the records. In its reasons for

judgment, the trial court stated that, because Alexandria provided Heath with the

requested records before trial, Heath “did not prevail in his action” and therefore was

not entitled to attorney fees or penalties. Heath appeals, asserting three assignments

of error.

ASSIGNMENTS OF ERROR:

1. Did the trial court err by not finding that the Plaintiff won his lawsuit by the

Defendant, the City of Alexandria, not allowing him to have immediate access to the

records requested instead of requiring him to make that request in writing?

2. Did the trial court err in not finding that Alexandria did not respond to in
writing, through its Records Custodian, to Plaintiff’s Public Records request?

3. Did Plaintiff prevail in this lawsuit by Alexandria responding to the lawsuit
after it was filed, and must still pay penalties and attorney’s fees?

ASSIGNMENT OF ERROR #1:

First, Heath asserts that Alexandria violated the Public Records Law by not

immediately providing him with the records he requested. We agree.

Louisiana Revised Statutes 44:33(B) provides:

(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.

(2) The fact that the public records are being audited shall in no case

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be construed as a reason or justification for a refusal to allow inspection
of the records except when the public records are in active use by the auditor.

Although Johnson testified at trial that, “[i]f there’s litigation pending, [the

records at issue]. . . would be kept in our risk management file,” he also stated that

there were “four places where that particular [requested document] would have - -

could be found,” including the city clerk’s office. Therefore, because a copy of the

requested records was immediately available and not in active use at the time of

Heath’s request, Jones failed to comply with La.R.S. 44:33(B) when she did not

immediately present the records to Heath.

ASSIGNMENT OF ERROR #2:

Heath asserts that Alexandria violated the Public Records Act when it failed

to timely and appropriately respond to his public records request, as required by

La.R.S. 44:35. We agree.

Louisiana Revised Statutes 44:35(A) provides that:

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.

Neither Jones nor Johnson: (1) allowed Heath access to the requested records

within five days of his request, exclusive of Saturdays, Sundays, and legal public

holidays, or (2) provided Heath with a final determination in writing. Johnson’s

phone call to Heath, while considerate, does not comply with the clear language of

the public records doctrine. Though Alexandria ultimately provided Heath with

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copies of the requested records, it did so only after he instituted legal proceedings,

roughly two months after his initial request. Thus, it is clear that Alexandria failed to

comply with the requirements of La. R.S. 44:35(A), which then provides that Heath

may “institute proceedings,” as he has done in this case.

ASSIGNMENT OF ERROR #3:

Heath argues that the trial court erred in failing to award him attorney’s fees

and penalties as a result of Alexandria’s failure to comply with the Public Records

Act. We agree.

Louisiana Revised Statutes 44:35(D) states that:

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.

The record indicates that over two months had passed before Alexandria finally

produced copies of the records Heath had requested. This time period is clearly

beyond the five-day period provided for in La. R.S. 44:35(A). Therefore, it would

appear that Heath is entitled to be awarded reasonable attorney fees and other costs

of litigation as provided for in La.R.S. 44:35(D). Alexandria contends, however, that

Heath did not “prevail” in his suit, as required by La.R.S. 44:35(D), because

Alexandria faxed the requested public records to Heath’s attorney, thereby rendering

these proceedings moot.

Were the court to accept this reasoning, it would allow public records

custodians would be allowed to deny access to public records until suit has been filed

and then, after a member of the public has incurred the costs of instituting

proceedings, thereby unilaterally precluding the member of the public any possibility

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of “prevailing” on his suit. This would hinder “[t]he right of the public to have access

to the public records [, which] 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). Our supreme court has stated that “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,

p.4 (La.2/21/01), 779 So.2d 691, 694. The supreme court has also 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. “To allow otherwise

would be an improper and arbitrary restriction on the public’s constitutional rights.”

Id. at 936. Members of the public should not be forced to institute legal proceedings

to obtain, at the very least, a final written determination regarding their right of

access to the requested records, as provided by the Public Records Act. In this case,

it was necessary for Heath to institute a proceeding in accordance with La. R.S.

44:35(A) to assert his rights, and his cause of action for an award under La. R.S.

44:35(D) arose when the statutory time delays lapsed. Johnson v. City of Pineville,

08-1234 (La.App. 3 Cir. 4/8/09), ___So.2d. ___.

Though we have found a violation of the Public Records Law in this instance,

we note that Alexandria argued in good faith that it believed the records Heath

requested were part of ongoing litigation and thus not subject to disclosure under the

Public Records Act. At trial, Johnson stated,

Mr. Aymond, I knew that there was a pending lawsuit between the city
of Alexandria and Mr. Heath. I knew that the documents he was
requesting were properly obtainable through discovery and not through
a public records request. I explained that to him on the phone. I thought
that I was being a courteous public servant by calling him personally
and telling him that your lawyer can get these documents through

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discovery. The discovery rules trump the public records law if there is
a suit filed.[1] [Heath] didn’t understand that because he is not a lawyer
or for whatever reason. I object to his characterization that I was
agitated. I deal with hundreds of requests like this all the time, sir.

Alexandria cites La.R.S. 44:4(15) in support of its position. Louisiana Revised

Statutes 44:4 states:

This Chapter shall not apply:

(15) To any pending claims or pending claim files in the custody or
control of the office of risk management, division of administration, or
similar records in the custody of any municipality or parish; to any
information concerning pending legal claims in the files of any attorney
representing the state or any municipality in connection with the office
of risk management, division of administration, or any office with
similar responsibilities of any municipality or parish; or to any pending
claims relating to loss reserves maintained or established by the office
of risk management, division of administration, or any office with
similar responsibilities of any municipality or parish, for any claims or
for losses incurred but not reported; however, this Chapter shall be
applicable to reserves as reported in the financial statement of the office
of risk management, division of administration, or any municipality or
parish. Nothing in this Paragraph shall be construed or interpreted in a
manner as to prevent or inhibit in any manner the chairman and vice
chairman of the Joint Legislative Committee on the Budget and the
litigation subcommittee of the Joint Legislative Committee on the
Budget from obtaining dollar amounts billed by and paid to contract
attorneys and experts in defense of claims against the state that the
chairman or vice chairman, or the subcommittee determines is necessary
to perform functions and duties relative to the evaluation of performance
or the determination of budget policy; however, no legislator or any
committee of the legislature shall disclose any confidential information
so obtained that would jeopardize or have a detrimental effect on the
litigating position of the state.

1
The rules of discovery do not appear to have any bearing on a member of the public’s right of
access under the Public Records Law. In Bauer v. Maestri, 96-112 (La.App. 5 Cir. 6/7/96), 676
So.2d 1096, Bauer, a parish employee who had five pending civil service appeals with Jefferson
Parish, sought to compel production of various parish government documents. On appeal, Jefferson
Parish argued that, because Bauer had originally sought the documents through discovery in
connection with his ongoing lawsuit with the parish, the documents were exempt from disclosure
under the Public Records Law. The fifth circuit rejected Jefferson Parish’s argument stating, “such
a denial of discovery would not be dispositive of Bauer’s right to access under the Public Records
Law.” Id. at 1100.

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However, La.R.S. 44:4(15) does not to apply for two reasons. First, we note

that even if the records in question were found to be exempt from disclosure under

the Public Records Law, Heath was entitled to receive a final written determination

as to whether he had the right of access to the records within five days from his

request, exclusive of Saturdays, Sundays, and legal holidays. La.R.S. 44:35(A). At

trial, Heath’s attorney asked Johnson whether he provided Heath with a written

determination:

Q. Alright. Did you at any time, any time, notify Mr. Heath in writing
the reasons why he was not getting the documents he had requested in
writing?

A. No, I did not and I didn’t have to because I knew there was a pending
suit between the city and - -

Q. Well, we’re not - -

A. - -Mr. Heath- -

Because Heath was never provided a final written determination regarding his right

of access to the public records, the custodian of said records is in violation of the

Public Records Law.

Second, it is clear that the records in question are not exempt from disclosure

under La.R.S. 44:4(15). In adopting La.R.S. 44:4(15), the legislature was seeking to

protect the work product of state, parish, and municipal attorneys.

[In] the audio-taped proceedings of the Committee on House and

Governmental Affairs conducted on May 27, 1987. . . Mr. Daryl Hunt,

a representative of the Division of Administration, explained to the

legislative committee members that two bills being introduced,

including the one that would exempt ‘pending claims or pending claim

files’. . . from public access, were designed to ‘provide [the office of risk

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management, division of administration, or any office with similar

responsibilities of any municipality or parish] the same rights that any

lawyer building a case would have.’

Times Picayune Publ’g Corp. v. Bd. of Supervisors of La. State Univ., 02-2551, pp.

9-10 (La.App. 1 Cir. 5/9/03), 845 So.2d 599, 607, writ denied, 03-1589 (La. 9/5/03),

852 So.2d 1044. We are of the opinion that it was not the intent of the legislature to

provide an exception to the Public Records Law for the types of documents at issue

here,2 the public nature of which cannot be altered by placing the originals or copies

thereof in the active litigation files of a city attorney.3 Obviously “any lawyer” cannot

exempt from disclosure a public record by placing a copy of that record in his

litigation files while building a case. There appears to be no reason why a special

exception should be made for public records contained in the litigation files of city

attorneys or any of the other offices described by La.R.S. 44:4(15). Louisiana

Revised Statutes 44:4(15) is designed to protect attorney work product and other

materials created specifically for a particular claim. Had Alexandria been concerned

about the possible release of nonpublic documents contained in Johnson’s files,

La.R.S. 44:32(B) provides that “the custodian may separate the nonpublic record and

make the public record available for examination.”

Accordingly, Heath is hereby awarded reasonable attorney fees in the amount

of $2,500.00 and all court costs associated with this litigation, pursuant to La.R.S.

2
Heath requested city council resolutions and job descriptions, along with any documents
authorizing the city attorney to file suit on behalf of Alexandria and any records authorizing a city
official to sign for pay types.
3
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.” Times-Picayune Publ’g.
Co. v. Johnson, 94-794, pp. 3-4 (La.App. 4 Cir. 10/3/94), 645 So.2d 1174,1176, writ denied, 95-83
(La. 3/17/95), 651 So.2d 260.

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44:35(D). While La.R.S. 44:35(E)(1) provides for additional penalties where the

custodian acted arbitrarily or capriciously, it does not appear from the record that

such penalties are warranted in this case, given Alexandria’s courteous treatment of

Heath and its good faith belief in its interpretation of La.R.S. 44:4(15).

CONCLUSION:

For the foregoing reasons, we reverse the judgment of the trial court and award

Heath court costs and attorney fees in the amount of $2,500.00.

REVERSED.

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