Tiffany A. Baker v. City of Leesville

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-480

TIFFANY A. BAKER

VERSUS

CITY OF LEESVILLE, ET AL.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 87,227, DIV. B
HONORABLE JOHN C. FORD, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

Daniel E. Broussard, Jr.
Broussard, Bolton, Halcomb
P. O. Box 1311
Alexandria, LA 71309
(318) 487-4589
COUNSEL FOR PLAINTIFF/APPELLANT:
Tiffany A. Baker

Aaron L. Green
Vilar & Elliott
P. O. Box 12730
Alexandria, LA 71315-2730
(318) 442-9533
COUNSEL FOR PLAINTIFF/APPELLANT:
Tiffany A. Baker

Jack L. Simms, Jr.
Attorney at Law
P. O. Box 1554
Leesville, LA 71446
(337) 238-9393
COUNSEL FOR DEFENDANT/APPELLEE:
City of Leesville

Brian D. Cespiva
Attorney at Law
711 Washington St.
Alexandria, LA 71301
(318) 448-0905
COUNSEL FOR DEFENDANT/APPELLEE:
Leesville Municipal Fire and Police Civil Service Board

PETERS, J.

The plaintiff, Tiffany A. Baker, appeals a trial court judgment rejecting her

claim for statutory penalties and attorney fees associated with a public records

request to the Leesville Municipal Fire and Police Civil Service Board (Board) and

the City of Leesville (City). For the following reasons, we affirm the trial court

judgment with respect to the Board, but reverse the judgment with respect to the

City and render judgment in favor of Ms. Baker, awarding her attorney fees and

statutory penalties.

DISCUSSION OF THE RECORD

On July 25, 2012, Ms. Baker’s attorney forwarded a written request for

copies of public records to both the City and the Board. The requests, which were

made pursuant to La.R.S. 44:3, et seq., the Louisiana Public Records Law, sought

to obtain copies of the following documents or public records:

(1) Any and all documents, correspondence, ordinances,
resolutions and any other documents that pertain to or involve
the rate at which each rank of Leesville fire employees
accumulate(d) annual leave from January 1, 2007 through
present date;

(2) Any and all documents, correspondence, ordinances,
resolutions and any other documents that pertain to or involve
the policies and/or procedures adopted by the City regarding the
accumulation or use of annual leave by Leesville fire
employees from January 1, 2007 through present date;

(3) Any and all documents, correspondence, summaries and any
other documents that list and/or describe the amount of annual
leave accumulated and/or used by each current and former
Leesville fire employee from January 1, 2007 through present
date (we request that the name of each current and former fire
employee be provided with the requested annual leave
information, but that any and all private or sensitive
information be redacted); and

(4) Any and all documents, agendas, meeting minutes, meeting
recordings; meeting transcripts, or other documents pertaining

or related to any and all meetings of the Leesville Municipal
Fire & Police Service Board from January 1, 2012 through
present date.

Both the City and the Board received a faxed copy of the request on July 25,

2012. The City received a duplicate original of the request by certified mail the

next day, and the Board received its duplicate original by certified mail on July 31,

2012.

The Board responded to the public records request through a July 31, 2012

letter from its attorney to Ms. Baker’s attorney which stated in pertinent part:

Please allow this correspondence to confirm our conversation this
afternoon wherein you have granted the Leesville Municipal Fire and
Police Civil Service Board an extension of time to respond to the
public records request[.]

The City did not respond at all.

When neither the City nor the Board had provided Ms. Baker with any of the

requested documents by November 2, 2012, she filed the action now before us.

Naming both the City and the Board as defendants, Ms. Baker sought a judgment

awarding her a statutory penalty of $100.00 per day from each defendant for the

period beginning when the responses were due until the defendants properly

responded. Additionally, Ms. Baker sought a judgment awarding her a reasonable

attorney fee from each defendant.

Because Ms. Baker sought expedited consideration of her demands, the trial

court held a rule to show cause hearing on November 29, 2012. At the hearing,

counsel for Ms. Baker acknowledged that the Board had produced at least part of

the requested public records, but only after she filed suit. In defense of its inaction,

the Board introduced a copy of the July 31, 2012 letter to Ms. Baker’s counsel and

took the position that the extension granted by Ms. Baker had no termination date.

That being the case, the Board argued, the extension of time in which to respond
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was still in effect when suit was filed. Counsel for Ms. Baker countered that the

extension was not intended to be “indefinite” or “open-ended” and that Ms. Baker

had expected a much earlier response.

When questioned by the trial court concerning the City’s failure to respond,

counsel for the City stated:

Well, Your Honor, it’s - - the answer is very simple. The request was
made, it was my understanding after communicating with [counsel for
the Board] we thought and we still do think that everything they’re
requesting is on record with the Civil Service Board, not the City. But,
be that as it may, if it were on record in the City they made the request,
all they’ve got to do is come inspect and copy it. We don’t have to do
that for them. That’s the law is they come over there and copy it. We
don’t - - we don’t have to put an employee to work for two weeks
doing that.

Later in argument to the trial court, counsel for the City stated that “[w]e assumed

that that was taken care of by the Board.”

The trial court took the matter under advisement and, on January 10, 2013,

filed written reasons for judgment wherein it recognized that both the City and

Board received the July 25, 2012 request for production of the public records; the

Board responded by asking for and obtaining an extension of time in which to

respond; and the City did not respond at all. However, despite further finding that

Ms. Baker was entitled to the requested public record, the trial court concluded that

La.R.S. 44:32(D) precluded an award of penalties and attorney fees.

Because the written reasons for judgment included a paragraph stating that

“IT IS ORDERED, ADJUDGED AND DECREED that a Writ of Mandamus issue

but without an award of penalties and attorneys fees[,]” Ms. Baker treated it as a

final judgment and timely perfected this appeal. In her appeal, she asserts in her

single assignment of error that the trial court erred in not awarding her penalties

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and attorney fees against both the City and the Board for their failure to respond to

her public records request.

OPINION

The right of an individual to examine public records is statutorily provided

for in La.R.S. 44:31, which states that:

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 may obtain a copy or
reproduction of 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.

Additionally, La.R.S. 44:32(A) provides in part that “[t]he custodian shall present

any public record to any person of the age of majority who so requests.” In fact,

La.R.S. 44:32(C)(1)(a) and (d) provide that the custodian has a “duty” to provide

the requested records. The only exception to the mandated production is when

there exists a question concerning whether the requested record is a public record.

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.

La.R.S. 44:32(D).

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If segregation of the requested records within the custodian’s office is

“unreasonably burdensome or expensive” or if the record is not immediately

available, the custodian must certify these difficulties in writing to the individual

requesting the records while still taking the steps necessary to make them available.

La.R.S. 44:33(A)(2). Additionally, if the records requested are “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[.]” La.R.S. 44:34.

Failure on the part of the custodian of the requested records to allow the

records to be inspected or copied gives rise to an enforcement cause of action

under La.R.S. 44:35, which provides:

A. Any person who has been denied the right to inspect or
copy a record under the provisions of this Chapter, either by a final
determination of the custodian or by the passage of five days,
exclusive of Saturdays, Sundays, and legal public holidays, from the
date of his request without receiving a final determination in writing
by the custodian, may institute proceedings for the issuance of a writ
of mandamus, injunctive or declaratory relief, together with attorney’s
fees, costs and damages as provided for by this Section, in the district
court for the parish in which the office of the custodian is located.

B. In any suit filed under Subsection A above, the court has
jurisdiction to enjoin the custodian from withholding records or to
issue a writ of mandamus ordering the production of any records
improperly withheld from the person seeking disclosure. The court
shall determine the matter de novo and the burden is on the custodian
to sustain his action. The court may view the documents in
controversy in camera before reaching a decision. Any
noncompliance with the order of the court may be punished as
contempt of court.

C. Any suit brought in any court of original jurisdiction to
enforce the provisions of this Chapter shall be tried by preference and
in a summary manner. Any appellate courts to which the suit is
brought shall place it on its preferential docket and shall hear it
without delay, rendering a decision as soon as practicable.

D. If a person seeking the right to inspect or to receive a copy
of a public record prevails in such suit, he shall be awarded
reasonable attorney’s fees and other costs of litigation. If such person

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prevails in part, the court may in its discretion award him reasonable
attorney’s fees or an appropriate portion thereof.

E. (1) If the court finds that the custodian arbitrarily or
capriciously withheld the requested record or unreasonably or
arbitrarily failed to respond to the request as required by R.S. 44:32, it
may award the requester any actual damages proven by him to have
resulted from the actions of the custodian except as hereinafter
provided. In addition, if the court finds that the custodian
unreasonably or arbitrarily failed to respond to the request as required
by R.S. 44:32 it may award the requester civil penalties not to exceed
one hundred dollars per day, exclusive of Saturdays, Sundays, and
legal public holidays for each such day of such failure to give
notification.

(2) The custodian shall be personally liable for the payment of
any such damages, and shall be liable in solido with the public body
for the payment of the requester’s attorney fees and other costs of
litigation, except where the custodian has withheld or denied
production of the requested record or records on advice of the legal
counsel representing the public body in which the office of such
custodian is located, and in the event the custodian retains private
legal counsel for his defense or for bringing suit against the requester
in connection with the request for records, the court may award
attorney fees to the custodian.

F. An award for attorney fees in any suit brought under the
provisions of this Chapter shall not exceed the amounts approved by
the attorney general for the employment of outside counsel.

(Emphasis added).

In this matter, it is undisputed that neither the City nor the Board raised any

questions concerning the status of the requested documents as public records

within three days of receipt of the request as required by La.R.S. 44:32(D). Nor

did either the City or the Board respond in writing that the requested records were

not in their custody, unavailable, or unreasonably burdensome or expensive to

produce. Thus, both the City and the Board had a statutory duty to produce the

requested records, and the only question for this court to decide is whether the trial

court erred in not awarding Ms. Baker penalties and attorney fees pursuant to

La.R.S. 44:35.

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Action of the Trial Court

The trial court held that La.R.S. 44:32(D) precluded an award of penalties

and attorney fees from either defendant, stating in its reasons for judgment that:

A plain reading of the Statute reveals that the penalties apply
only when a question is raised about the nature of the records being
sought as being public records or some exclusion to the disclosure
requirements is raised by the custodian. Washington v. Reed, 95-1067,
668 So.2d 1313 (La. App. 1st Cir. 2/03/96).

We find that neither La.R.S. 44:32(D) nor the decision in Washington support the

trial court’s rejection of Ms. Baker’s request for penalties and attorney fees.

Louisiana Revised Statutes 44:32(D) makes no mention of penalties and attorney

fees and merely sets forth the delay applicable for a custodian to assert that a

requested record is not a public record. Additionally, the first circuit in

Washington was addressing a public records request by a prisoner to the District

Attorney’s office and the Clerk of Court’s office. The plaintiff interpreted La.R.S.

44:32(D) to require the custodians to respond to his requests within three days or

suffer the penalties provided for in La.R.S. 44:35(E)(1). The first circuit

concluded that an award of penalties is not related to the three-day provision of

La.R.S. 44:32(D), but instead to whether or not the custodians were arbitrary and

capricious in dealing with the records requests.

Thus, we find that the trial court erred as a matter of law in finding La.R.S.

44:32(D) to be dispositive of the issues before it.

A legal error occurs when a trial court applies incorrect principles of
law and such errors are prejudicial. Legal errors are prejudicial when
they materially affect the outcome and deprive a party of substantial
rights. When such a prejudicial error of law skews the trial court’s
finding of a material issue of fact and causes it to pretermit other
issues, the appellate court is required, if it can, to render judgment on
the record by applying the correct law and determining the essential
material facts de novo.

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Evans v. Lungrin, 97-541, 97-577, p.7 (La. 2/6/98), 708 So.2d 731, 735 (citations
omitted).

However, the conclusion that the trial court erred as a matter of law in rejecting the

claim for penalties and attorney fees does not automatically require such awards in

favor of Ms. Baker. Instead, we must now perform a de novo review of the record

to determine whether she is entitled to relief against either custodian.

Leesville Municipal Fire and Police Civil Service Board Claim

We find no error in the trial court’s denial of a penalty and attorney fee

award against the Board. The Board did not deny Ms. Baker the right to inspect or

copy the requested public records. Instead, it sought and obtained an extension of

time in which to respond and that extension was still in effect when Ms. Baker

filed her suit for mandamus. Furthermore, Ms. Baker did not present any evidence

to establish that the Board’s delay in responding was caused by anything other than

the time required to compile the requested records.

City of Leesville Claim

The claim against the City is factually different from the claim against the

Board. Not only did the City fail to obtain an extension of time in which to

respond, but it ignored the request altogether. Its only explanation was that it

assumed the Board would produce all of the necessary records. At the trial on the

rule, the City acknowledged that it had still not responded in any way, and the trial

court issued a mandamus to the City ordering it to produce the requested records.

With regard to the request for attorney fees, La.R.S. 44:35(D) states that the

trial court “shall” award a reasonable attorney fee when the person seeking the

public records prevails in his or her suit. The only restriction on that award is that

it “shall not exceed the amounts approved by the attorney general for the

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employment of outside counsel.” La.R.S. 44:35(F). In this case, Ms. Baker

prevailed against the City and is entitled to a reasonable attorney fee award.

Factors to be taken into consideration in determining the
reasonableness of attorneys’ fees include: (1) the ultimate result
obtained; (2) the responsibility incurred; (3) the importance of the
litigation; (4) the amount of money involved; (5) the extent and
character of the work performed; (6) the legal knowledge, attainment,
and skill of the attorneys; (7) the number of appearances made; (8)
the intricacies of the facts involved; (9) the diligence and skill of
counsel; and (10) the court’s own knowledge. Rivet v. State,
Department of Transportation and Development, 96-0145, pp. 11-12
(La.9/5/96), 680 So.2d 1154, 1161. In making an award of attorneys’
fees, the trial court is vested with considerable discretion, and the
award will not be disturbed in the absence of clear abuse of discretion.
St. Tammany Parish Hospital Service District No. 2 v. Schneider,
2000-0247, pp. 13-14 (La.App. 1st Cir.5/11/01), 808 So.2d 576, 587.

Capital City Press v. Bd. of Sup’rs of La. State Univ., 01-1692, p. 3 (La.App. 1 Cir.
6/21/02), 822 So.2d 728, 731.

In applying the factors set forth in Capital City Press to the matter before us,

we note that Ms. Baker was awarded the relief she sought, a mandamus ordering

the production of the requested documents; her legal counsel was diligent in

representing Ms. Baker, and this diligence was the basis for the recovery; and the

concept of making available public records for inspection is of significant

importance to our society in general. While the Louisiana Public Records Law is

not overly complicated, claims are not common, and, therefore, they require that an

attorney do extraordinary research in each individual case. The record before us

contains no evidence of the hours spent by Ms. Baker’s counsel, nor does it

establish her attorney’s hourly rate. It does establish, however, that her counsel

prepared the proper records requests and caused them to be served on the City,

prepared and filed the petition giving rise to this litigation, corresponded with

counsel for the Board, appeared at the November 29, 2012 hearing, and perfected

this appeal. Considering the record before us and the factors set forth in Capital

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City Press, we award Ms. Baker reasonable attorney fees in the amount of

$3,500.00.

While an attorney fee award is mandated by statute if a litigant obtains

recognition of his or her right to receive a copy of a public record, penalties are

only awarded on the basis of unreasonable and arbitrary withholding of public

records by the custodian after a request for such records. La.R.S. 44:35(E)(1).

Assuming a finding of unreasonable and arbitrary action, the award of penalties is

left to the discretion of the factfinder. Id.

The City received a faxed copy of Ms. Baker’s request on July 25, 2012, and

received the original written request the next day. It took no action to comply or

respond. Ninety-nine days later when Ms. Baker filed her November 2, 2012

mandamus action, the City still had not responded in any way. Twenty-seven days

after the filing of the mandamus action, the rule to show cause hearing was held, at

which time the City still had not responded. Its defense at the trial on the rule was

that it assumed everything would be taken care of by the Board and that, in any

event, if Ms. Baker wanted to inspect and copy the documents, she could come to

the City’s office and do so. In other words, the City simply ignored the law

pertaining to a citizen’s access to public records. We find the inaction on the part

of the City to be unreasonable and arbitrary.

Because the trial court erroneously disposed of the litigation by applying

La.R.S. 44:32(D), it never reached the question of whether the City was

unreasonable and arbitrary and, therefore, never asserted its discretion in

determining whether the City should be assessed the daily penalty provided for in

La.R.S. 44:35(E)(1). Reviewing this issue de novo, we conclude that Ms. Baker is

entitled to a penalty for the City’s unreasonable and arbitrary denial of her public

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records request, and we set that penalty at $25.00 per day, “exclusive of Saturdays,

Sundays, and legal public holidays for each such day of such failure to give

notification.” Id.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment rejecting

Tiffany A. Baker’s claims for attorney fees and statutory penalties against the

Leesville Municipal Fire and Police Civil Service Board. However, we reverse the

trial court’s judgment rejecting Tiffany A. Baker’s claims for attorney fees and

statutory penalties against the City of Leesville, and we render judgment in favor

of Tiffany A. Baker and against the City of Leesville, awarding her $3,500.00 in

attorney fees and a civil penalty of $25.00 per day, exclusive of Saturdays,

Sundays, and legal public holidays, to run from July 26, 2012, until the City of

Leesville complies with the public records request. We assess all costs of this

appeal to the City of Leesville, and pursuant to La.R.S. 13:5112(A), we set those

costs at $809.62.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

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