Zillow, Inc. v. Michael C. Bealer in His Capacity as Assessor for the Parish of Vernon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-545

ZILLOW, INC.

VERSUS

MICHAEL C. BEALER IN HIS CAPACITY
AS ASSESSOR FOR THE PARISH OF VERNON

**********

APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 99,684
HONORABLE TONY A. BENNETT, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

**********

Court composed of Shannon J. Gremillion, Candyce G. Perret, and J. Larry Vidrine,1
Judges.

AFFIRMED.

1
Honorable J. Larry Vidrine participated in this decision by appointment of the Louisiana Supreme
Court as Judge Pro Tempore.

Scott L. Sternberg
Marcia Suzanne Montero
Graham H. Williams
Michael s. Finkelstein
Sternberg, Naccari & White, LLC
935 Gravier Street, Suite 2020
New Orleans, LA 70112
(504) 324-2141
COUNSEL FOR PLAINTIFF/APPELLANT:
Zillow, Inc.

Brian A. Eddington
3060 Valley Creek Drive, Suite A
Baton Rouge, LA 70808
(225) 924-4066
COUNSEL FOR DEFENDANT/APPELLEE:
Michael C. Bealer, Assessor for Vernon Parish

PERRET, Judge.

This is a mandamus action seeking to obtain documents pursuant to the

Louisiana public records law. Zillow, Inc. (“Zillow”) filed a petition for a writ of

mandamus to compel defendant, Michael C. Bealer, in his capacity as Assessor of

Vernon Parish, to provide “an electronic copy of the current 2019 Web Files and

Collections file for all parcels in Vernon Parish in text file format, its native format[.]”

Although Zillow acknowledges that Assessor Bealer responded to its public records

request, it argues that the requested information was incomplete and not delivered in

text file format. From the trial court’s judgment dismissing this action, Zillow now

appeals. For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY:

On February 9, 2021, Zillow filed a petition for writ of mandamus against

Assessor Bealer alleging that on February 20, 2020, it requested an electronic copy,

in text file format, of the current 2019 Web Files and Collections file for all parcels

in Vernon Parish pursuant to the Louisiana Public Records Act. Zillow alleged that

it paid Assessor Bealer $1,250 for the public information but that the file it received

“was not complete and did not include all parcels in Vernon Parish.” Specifically,

the petition states, in pertinent part (reference to exhibits omitted):

5.

The Defendant finally produced a file [at] the end of May 2020
in exchange for $1,250 payment to the Defendant. The file, however,
was not complete and did not include all parcels in Vernon Parish.

6.

On June 16, 2020, after several unanswered calls and emails from
Zillow, Defendant responded stating he would resend the file to include
all the requested information.

7.

The Defendant never resent the file. Accordingly, Zillow
retained a contract attorney, Patrice A. Bazianos, to assist Zillow in
dealing with the Defendant. Ms. Bazianos contacted the Defendant and
requested that the Defendant either reproduce a complete file or allow
Zillow to purchase the file from the parish vendor for no additional fee.

8.

Defendant stated that it would allow Zillow to purchase the
complete file from its vendor only if Zillow paid the vendor’s fee in
addition to the $1,250 Zillow paid to the Defendant, thus converting the
$1,250 payment to the Defendant into an authorization fee.

9.

Ms. Bazianos rejected Defendant’s offer to convert the $1,250
payment into an authorization fee only for Zillow to have to pay an
additional fee to vendor.

10.

Petitioner hired undersigned counsel, who initiated contact with
Defendant’s, but has been unable to secure the requested records in their
native format.

11.

Defendant has willfully and wantonly violated the Public
Records Law, and should be liable for attorney’s fees and damages for
unreasonable withholding of public records.

On June 29, 2021, Assessor Bealer filed a memorandum in opposition to the

petition for writ of mandamus stating that he provided Zillow with the information

requested for a charge of $1,250 but that “Zillow responded that the information

provided was ‘incomplete’ (without ever identifying what information was missing)

and demanded a refund, which Assessor Bealer provided.” The opposition further

stated that “Zillow then demanded that Assessor Bealer ‘authorize’ his software

service provider [Software and Services] to create ‘an electronic copy of the current

2019 Web Files and Collections file for all parcels in Vernon Parish in text file

format.’” Assessor Bealer argues that there is no legal basis for a court to “order a

2

custodian of public records to direct a third-party software service provider to

generate and produce a copy of ‘data in its native format’ that it has the ability to

access by virtue of the software it provides to the custodian.”

Assessor Bealer also filed supplemental memorandums in opposition wherein

he cites to recent rulings in the 7th and 20th Judicial District Courts that rejected the

same claims against other assessors that Zillow is now asserting against him.

Specifically, in Zillow, Inc. v. Matt Taylor, In His Capacity as the Assessor for the

Parish of Catahoula, the trial judge’s reasons for judgment, rendered on April 27,

2021, provided, in pertinent part:

Thereafter on February 1, 2021, Zillow, Inc. filed a Petition for
Writ of Mandamus against Matt Taylor in his Official Capacity as
Assessor for the Parish of Catahoula. Zillow Inc. seeks to have the
Assessor produce a copy of the 2019 assessment records of Catahoula
Parish in its “native format” which includes ownership, values, and
property characteristics for all parcels in Catahoula Parish, Louisiana.

....

Assessor Taylor testified his office is small, only has two
employees, and it does not maintain an IT staff. Taylor, further testified
that he retains the services of a third party vendor to generate the
“electronic roll” of the Catahoula Parish assessment records which is
sent to the Louisiana Tax Commission and his office does not retain a
copy of this “electronic roll”.

Plaintiff cites cases which are inapplicable in this instance. The
Williams Law Firm v[.] Board of Supervisor of Louisiana State
University case 2003-0079 (La.App[.] 1 Cir 4/2/04) 878 So[.]2d 557
was a case where the defendant kept data concerning parishes and was
obligated to report it once per year. In Times Picayune Pub v[.] Johnson
94-0790 (L[a].App[.] 4 Cir. 10/3/94) 645 So[.]2d 1174, [c]ustody of
records was intentionally transferred to avoid responsibilities of Public
Records Law.

Zillow Inc. argues that the Catahoula Assessor should produce a
copy of the 2019 Catahoula Parish Assessment roll in its “native
format” even though the office is incapable of producing that
information. The court finds that information is not a public document
but is a list of raw data such as property characteristics, property value,
and property ownership. The Catahoula Assessor is not required to
create documents in the format requested by Zillow Inc.

3

Assessor Bealer also attached the transcript of the trial judge’s oral reasons

for judgment in Zillow, Inc. v. Jeffrey Garner, In His Official Capacity as Assessor

for the Parish of East Feliciana, rendered on May 3, 2021, which states:

BY THE COURT: Thank you. All right. Quite frankly, I don’t
really see this as a dispute over the public records. Nobody is denying
that the tax records themselves are public records. Mr. Eddington has
said that. Obviously, Mr. Sternberg agrees with that portion.

I see this completely as an argument over an entity trying to force
the Assessor to provide the information in a particular format that they
will find more user-friendly to whatever they wish to do with it. Which,
given the fact that [Z]illow is a real estate company and, as Mr.
Sternberg has indicated, they want to make their in-house analysis,
apparently of property values and living expenses in the area. I don’t
believe that the Assessor’s Office is obligated to assist a real estate
company, or any other company for that matter, I’m not picking on real
estate companies, with their business endeavors.

The Assessor’s Office is absolutely obligated to provide in
whatever format they maintain in their office and in their database,
whatever format they have in order to accurately copy and provide the
information to the requestor at a reasonable cost. If this is PDFs on
CDs, then that’s a few punches of the buttons. And I would suspect
more than one CD given the number of parcels, however many that may
be, in an entire parish. But if Mr. Eddington and his client say that
twenty-five dollars is a reasonable fee for that, then that’s -- I certainly
would not disagree that that is a reasonable fee.

I do not believe that the Assessor’s Office is obligated under the
public records law to put the information in a particular format. So, for
that reason, the -- that portion of the Writ of Mandamus is denied.

Similarly, in the case sub judice, the trial judge ruled in favor of Assessor

Bealer and dismissed Zillow’s case. In his reasons for judgment, the trial judge

stated, in pertinent part (footnotes omitted):

Zillow paid $1,250 to Bealer’s office in advance for research and
reproduction costs and in May 2020 Bealer’s office produced the
records. However, Zillow claimed Bealer’s response was both
incomplete and not in the format it requested. Zillow requested a refund
of advance costs. Bealer contends his office does not maintain the
records sought in text file, native format. Rather, the records in this
format are accessible through a third-party contractor called Software
and Services. Thereafter, Zillow filed a Petition for Writ of Mandamus
against Bealer in his Official Capacity as Assessor for the Parish of
Vernon.
4

....

In Zillow’s pretrial memorandum and at hearing, counsel for Zillow
acknowledged that Bealer has produced the public records requested
but not in “text file” format. Bealer testified his office does not
maintain the information sought by Zillow in text file format.

The Court finds:

1) Assessor Bealer has complied with the Public Records Act by
producing assessment records that are in his custody.

2) The assessment database in its native format is maintained by
a third-party and not a public document.

3) Assessor Bealer does not have in his custody “an electronic
copy of the current 2019 Web Files and Collections file for all
parcels in Vernon Parish in text file format[.]”

The Court finds petitioner, Zillow, Inc., has not proven the
records sought from Assessor Bealer are actually in Bealer’s custody.
Bealer is not required to create an assessment database in its native
format because it is not a public document.

The Petition for Writ of Mandamus filed by Zillow, Inc. is
dismissed and Plaintiff is cast with all costs.

Zillow appeals this trial court judgment, asserting the following five

assignments of error:

1. The trial court erred in dismissing Zillow’s Petition for Writ of
Mandamus.

2. The trial court erred in holding that the assessment database Zillow
requested is not a public document.

3. The trial court erred in its interpretation of the Louisiana Public
Records Law and in placing the burden of proof on Zillow.

4. The trial court erred in giving credit to Assessor Bealer’s
inconsistent testimony and statements, and in finding “Assessor Bealer
does not have in his custody ‘an electronic copy of the current 2019
Web Files and Collections file for all parcels in Vernon Parish in text
file format[.]’”

5. The trial court erred in failing to award attorneys’ fees and costs to
Zillow.

5

STANDARD OF REVIEW:

“An appellate court reviews a trial court’s judgment denying a writ of

mandamus under an abuse of discretion standard.” Stevens Constr. & Design, L.L.C.

v. St. Tammany Fire Prot. Dist. No. 1, 19-955, pp. 8-9 (La.App. 1 Cir. 7/8/20), 308

So.3d 724, 731, writ denied, 20-990 (La. 11/4/20), 303 So.3d 652. Additionally,

“[f]indings of fact regarding whether to issue a writ of mandamus are subject to the

manifest error standard of review.” Hess v. M & C Ins., Inc., 14-962, p. 3 (La.App.

3 Cir. 2/11/15), 157 So.3d 1200, 1203. Under a manifest error standard of review,

this court can only reverse if it finds, based on the entire record, that there is no

reasonable factual basis for the factual finding and that the fact finder is clearly

wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993).

However, questions of law, such as the proper interpretation of a statute, are

reviewed by appellate courts under the de novo standard of review, and the appellate

court is not required to give deference to the lower court in interpreting a statute.

Thibodeaux v. Donnell, 08-2436 (La. 5/5/09), 9 So.3d 120.

DISCUSSION:

Louisiana Code of Civil Procedure Article 3861 defines mandamus as “a writ

directing a public officer . . . to perform any of the duties set forth in Articles 3863[.]”

According to La.Code Civ.P. art. 3863, “[a] writ of mandamus may be directed to a

public officer to compel the performance of a ministerial duty required by law, or to

a former officer or his heirs to compel the delivery of the papers and effects of the

office to his successor.” “A ministerial duty is a simple, definite duty, arising under

conditions admitted or proved to exist, and imposed by law.” Hoag v. State, 04-857,

p. 7 (La. 12/1/04), 889 So.2d 1019, 1024. The critical element necessary for the

issuance of mandamus is that “the public official to whom the writ is directed may

6

exercise no element of discretion when complying.” Id. at 1024. “If a public officer

is vested with any element of discretion, mandamus will not lie.” Id. at 1024.

Additionally, Louisiana’s public records law provides for its own mandamus

remedy in La.R.S. 44:35(A), which states:

A. Any person who has been denied the right to inspect, copy,
reproduce, or obtain a copy or reproduction of a record under the
provisions of this Chapter, either by a determination of the custodian or
by the passage of five days, exclusive of Saturdays, Sundays, and legal
public holidays, from the date of his in-person, written, or electronic
request without receiving a determination in writing by the custodian
or an estimate of the time reasonably necessary for collection,
segregation, redaction, examination, or review of a records request,
may institute proceedings for the issuance of a writ of mandamus,
injunctive or declaratory relief, together with attorney 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.

Before addressing the merits of the writ of mandamus, it is necessary to review

the Louisiana Constitution and the public records law. Louisiana Constitution

Article XII, § 3 provides that: “No person shall be denied the right to observe the

deliberations of public bodies and examine public documents, except in cases

established by law.” The Louisiana legislature has codified this right in the Public

Records Act, La.R.S. 44:1 et seq., while La.R.S. 44:31 implements this guarantee by

providing:

A. Providing access to public records is a responsibility and duty
of the appointive or elective office of a custodian and his employees.

B. (1) Except as otherwise provided in this Chapter or as
otherwise specifically provided by law, and in accordance with the
provisions of this Chapter, any person of the age of majority may
inspect, copy, or reproduce any public record.

(2) Except as otherwise provided in this Chapter or as otherwise
specifically provided by law, and in accordance with the provisions of
this Chapter, any person may obtain a copy or reproduction of any
public record.

(3) The burden of proving that a public record is not subject to
inspection, copying, or reproduction shall rest with the custodian.

7

A “public record” is defined in La.R.S. 44:1(A)(2)(a) as follows:

All books, records, writings, accounts, letters and letter books,
maps, drawings, photographs, cards, tapes, recordings, memoranda,
and papers, and all copies, duplicates, photographs, including
microfilm, or other reproductions thereof, or any other documentary
materials, regardless of physical form or characteristics, including
information contained in electronic data processing equipment, having
been used, being in use, or prepared, possessed, or retained for use in
the conduct, transaction, or performance of any business, transaction,
work, duty, or function which was conducted, transacted, or performed
by or under the authority of the constitution or laws of this state, or by
or under the authority of any ordinance, regulation, mandate, or order
of any public body or concerning the receipt or payment of any money
received or paid by or under the authority of the constitution or the laws
of this state, are “public records”, except as otherwise provided in this
Chapter or the Constitution of Louisiana.

Louisiana Revised Statutes 44:32 defines the duties of the custodian and

provides, in pertinent part:

A. The custodian shall present any public record to any person
of the age of majority who so requests. The custodian shall make no
inquiry of any person who applies for a public record, except an inquiry
as to the age and identification of the person and may require the person
to sign a register and shall not review, examine or scrutinize any copy,
photograph, or memoranda in the possession of any such person; and
shall extend to the person all reasonable comfort and facility for the full
exercise of the right granted by this Chapter; provided that nothing
herein contained shall prevent the custodian from maintaining such
vigilance as is required to prevent alteration of any record while it is
being examined; and provided further, that examinations of records
under the authority of this Section must be conducted during regular
office or working hours, unless the custodian shall authorize
examination of records in other than regular office or working hours.
In this event the persons designated to represent the custodian during
such examination shall be entitled to reasonable compensation to be
paid to them by the public body having custody of such record, out of
funds provided in advance by the person examining such record in other
than regular office or working hours.

B. If any record contains material which is not a public record,
the custodian may separate the nonpublic record and make the public
record available for examination.

C. (1)(a) For all public records, except public records of state
agencies, it shall be the duty of the custodian of such public records to
provide copies to persons so requesting. The custodian may establish
and collect reasonable fees for making copies of public records. The
custodian may request payment of fees in advance of production.
8

Copies of records may be furnished without charge or at a reduced
charge to indigent citizens of this state.

Louisiana’s public records law “should be construed liberally in favor of free

and unrestricted access to public documents.” Shane v. Par. of Jefferson, 14-2225,

p. 9 (La. 12/8/15), 209 So. 3d 726, 735. Although La.R.S. 44:32(B) recognizes that

portions of the requested material may be nonpublic and allows the custodian the

option to separate that portion from the requested material, “the request for

production of information cannot be so burdensome as to interfere with the operation

of the custodian’s constitutional and legal duties.” Williams L. Firm v. Bd. of Sup’rs

of Louisiana State Univ., 03-79, p. 6 (La.App. 1 Cir. 4/2/04), 878 So.2d 557, 563.

Zillow raises five assignments of error that all flow from whether the trial

court erred in denying Zillow’s mandamus petition to compel Assessor Bealer to

provide it with an electronic copy, in text file format, with the current 2019 Web

Files and Collections file for all parcels in Vernon Parish. Assessor Bealer was the

only witness to testify at the one-day hearing on the writ of mandamus.

Assessor Bealer testified that Zillow requested an electronic copy of the

current 2019 Web Files and Collections file for all parcels in Vernon Parish in text

file format but that his office does not keep records in the text file format. Assessor

Bealer testified he told Zillow he would create the record at a cost of $1,250 and that

he subsequently did so after receiving Zillow’s payment to prepare the record. Upon

receiving the requested record, Assessor Bealer testified that Zillow, through its

attorney, contacted him saying that the file it received was “incomplete” and “they

couldn’t use the file.” According to Assessor Bealer, Zillow did not identify any

missing documents or parcels but merely commented that it “didn’t think the file

was large enough” and that “the file that we sent they -- they couldn’t use.” At that

9

time, Assessor Bealer testified that he offered Zillow a full refund of the $1,250,

which Zillow accepted.

Assessor Bealer also testified regarding Zillow’s request to acquire the data

directly from his software contractor, Software and Services. Assessor Bealer

testified, in pertinent part:

Q. Okay. Uh, did Zillow separately request that you allow them to
acquire, uh, the -- this data directly from Software and Services?

A. They did.

Q. And what was your response to that request?

A. That I would not allow Software and Services to perform that
task.

Q. Okay. Did you at any time -- I mean, there was a statement a
moment ago that you were willing to call Software and Services and
have them release the requested data to Zillow for 1,250. Uh, did you
ever make such a statement?

A. No.

Q. Uh, and, again, the -- the [$]1,250 - discussions were purely
regarding the initial charge for you to produce these records for Zillow,
correct?

A. Correct.

Q. And, again, that was the sum that was refunded?

A. Correct.

Q. Uh, can you explain to me why you were unwilling to simply call
Software and Services and have them release the requested data to
Zillow?

A. Because some of the information that’s included in our parish tax
roll is confidential information received, um, on LAT forms from --
from taxpayers and it is in fact confidential.

....

Q. Uh, does Software and Services have the ability, uh, I’ve heard
it referred to as “on the back end” to access that data?

A. Do they have the ability to access the data?
10

Q. Yes.

A. Yes.

Q. But that data’s actually in the possession of your office, is it not?

A. Correct. It’s on the server in our office.

Although Zillow argues on appeal that the “testimony at trial showed that Mr.

Bealer’s office can produce the information requested” and that “Zillow’s request

for the assessment data is a lawful request that seeks the production of a public

record,” we find that Assessor Bealer did in fact create and provide Zillow with the

electronic copy of the records listing all parcels in the parish maintained by his office.

Assessor Bealer was merely unable to provide the records to Zillow in the requested

“text file format.” However, jurisprudence holds that “[t]he custodian need only

produce or make available for copying, reproduction, or inspection the existing

records containing the requested information, and is not required to create new

documents in the format requested.” Williams L. Firm, 878 So.2d at 563, (citing

Nungesser v. Brown, 95-3005 (La. 2/16/96), 667 So.2d 1036).

Although Zillow argues on appeal that Assessor Bealer’s software service

provider, Software and Services, has the data in the text file format, the

uncontradicted testimony of Assessor Bealer was that he would not authorize

Software and Services to release the requested data to Zillow because “some of the

information that’s included in our parish tax roll is confidential information received,

um, on LAT forms from -- from taxpayers and it is in fact confidential.” In support

of this statement, Assessor Bealer cites to La.R.S. 47:2327, which addresses the

confidentiality of tax forms. Louisiana Revised Statutes 47:2327 provides:

Forms filed by a taxpayer pursuant to this Part shall be
confidential and shall be used by the assessor, the governing authority,
the Louisiana Tax Commission, and the Louisiana Department of
Revenue, solely for the purpose of administering the provisions of this
Part and verifying eligibility for tax credits claimed under R.S. 47:6006.
11

Such forms shall not be subject to the provisions of the Public Records
Law, provided however, that such forms shall be admissible in evidence
and subject to discovery in judicial or administrative proceedings
according to general law relating to the production and discovery of
evidence.

We agree with Assessor Bealer that the Louisiana Revised Statutes provide

for confidentiality of taxpayer’s reports. After reviewing the jurisprudence and

statutory law, we find no legal support for Zillow’s argument that Assessor Bealer

be ordered to have his software service provider create the assessment record in a

“text file format.” Additionally, upon reviewing the record and Assessor Bealer’s

uncontradicted testimony, we find no manifest error in the trial court’s factual

findings that Assessor Bealer “complied with the Public Records Act by producing

the assessment records that were in his custody[,]” that the “assessment database in

its native format [text file format] is maintained by a third-party and not a public

document[,]” and that “Assessor Bealer does not have in his custody ‘an electronic

copy of the current 2019 Web Files and Collections file for all parcels in Vernon

Parish in text file format[.]’”

Because the trial court found that Assessor Bealer complied with the Public

Records Act by producing the assessment records in his custody, it dismissed

Zillow’s petition for writ of mandamus. As such, it found Zillow does not have a

right to be awarded attorney fees and costs under La.R.S. 44:35D(1), which provides

that “[i]f a person seeking the right to inspect, copy, or reproduce a record or to

receive or obtain a copy or reproduction of a public record prevails in such suit, he

shall be awarded reasonable attorney fees and other costs of litigation.” We find no

error by the trial court on this issue.

12

For the reasons stated herein, we hereby affirm the trial court judgment that

denied Zillow’s application for a writ of mandamus. All costs of this appeal are

assessed to Appellant, Zillow, Inc.

AFFIRMED.

13