Louisiana Public Records Act

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The Louisiana Public Records Act, also known as Louisiana's Sunshine Law, was enacted by the state's legislature in 1940.

The Louisiana Open Meeting Law legislates the methods by which public meetings are conducted.

In 1974, Louisiana adopted a new State Constitution which included a provision establishing (for the first time) that idea that public documents are presumed to be open for public inspection. The 1974 constitution says, "No person shall be denied the right to . . . examine public documents except in cases established by law." (La. Const. art. XII, § 3.

However, the 1940 and 1974 laws both limited who could ask for records to "state electors" and "state taxpayers".

This was changed in 1978, when the law was again altered, providing that:

Contents

  • "Any person of the age of majority" can examine public records in the state.
  • Penalties were set for government officials who failed to comply with the law.[1]

[edit] Louisiana's transparency report card

A 2008 study, BGA - Alper Integrity Index, conducted by the Better Government Association and sponsored by Alper Services, ranked Louisiana #5 in the nation with an overall percentage of 61.40%. [2]

A 2007 study, Graded state responsiveness to FOI requests, conducted by BGA and the NFOIC, gave Louisiana 78 points out of a possible 100, a letter grade of "C", and a ranking of 3 out of the 50 states.[3]

A 2002 study, Freedom of Information in the USA, conducted by IRE and BGA, ranked Louisiana's law as the 6th best in the country, giving it a letter grade of "B-".[4]

[edit] The 2008 revisions

In 2007, Governor Bobby Jindal came to office with a stated goal of increasing transparency and accountability in Louisiana government. In 2008 several pieces of legislation were passed duing a special session on ethics and accountability reform that lasted from February 10th to February 26th.

[edit] Features of the law

[edit] How is "record" defined?

Louisiana's sunshine law says that "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 by the public records act or the Constitution of Louisiana." (Louisiana Revised Statutes 44:1).

  • "Information contained in electronic data processing equipment" is specifically included in the definition of "public records." This includes any records stored in digital form as well as all governmental e-mail records except for any records specifically exempted under the law.[5]

[edit] Who can request records?

Until 2004, when the legislature amended the law to allow minors to receive copies of public records, those requesting records had to be "of the age of majority."[6]

Some people are not allowed to request records:

  • A convicted felon in custody may not request records unless the request is limited to grounds upon which the individual could file for post-conviction relief. See Hilliard v. Litchfield, a 2002 case.
  • Public bodies may not request records, although the individuals who make up a public body may make a request. See Plaquemines Parish Council v. Petrovich, a 1994 case.
  • The right to inspect records only applies to the person who actually made the request, even if that person is acting under the supervision of or at the direction of someone else. See Vourvoulias v. Movassaghi, a 2005 ruling.[7] with these exceptions:

For requester residency requirements in other states, see the list of who can make public record requests by state.

[edit] Who receives the request?

The custodian of public records is "the public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records."

A person is the "custodian" of a public record if he or she has "control" over the records at issue; physical possession is not required to make a government official the legal custodian of a document.

[edit] Must requestors state their purpose?

Records can be requested for any reason, which does not have to be given to the custodian of the records. The Custodian of the Records "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."[8]

[edit] What uses can be made of the documents?

There are no restrictions on what can be done with the public documents once a records requester has them in hand.

[edit] What records are exempt?

  • 911 tapes are exempt from open records requests due to "privileged communications between a health care provider and patient", as determined by the 2006 court ruling Hill v. East Baton Rouge Parish Department of Emergency Medical Services.
  • Accident reports are open to parties of the accident, insurers, attorneys, and "news gathering organizations".
  • Closed investigation records fall under the sunshine law; however, active investigations do not.

[edit] Time allowed for response

Section 44:32(D) of the relevant statute dictates that the custodian of the records must respond to requests within three days. Weekends and holidays are excluded from the three day countdown. The custodian of the records is required to respond in some fashion within the three-day window even if the custodian is still engaged in a decision process about which, if any, of the requested records can be withheld. See Association of Rights of Citizens v. St. Bernard, a 1990 case.

To compare the mandated response time in Louisiana to other states, see: Request response times by state.

[edit] Enforcement

Louisiana does not provide an ombudsman. A person whose attempts to gain access to public documents have been unsuccessful must turn to the district courts. These courts can enjoin the custodian from withholding records or issue a writ of mandamus ordering the production of any records improperly withheld from the requester. A records requestor can ask that a writ of mandamus be issued, or for other relief, after being denied the right to inspect records and after either (a) the custodian of the records has issued a final determination of denial in writing or (b) five business days from the date of the request have elapsed.

[edit] Penalties for non-compliance

To file suit against government non-compliance of the sunshine laws, action must be taken within 60 days of the violation.

Any government official who "knowingly and willfully" participates in a meeting that violates the Open Meeting Law can be charged with a civil infraction of up to $100 per violation.

The losing party in the suit will be responsible for court costs and reasonable attorney fees.

[edit] What governmental bodies are subject to the law?

[edit] Governor's office

Records in the custody of the Governor's office are generally exempt. La. Rev. Stat. 36:4.1 (2002) says that the sunshine law does not apply to any records "ordinarily kept in the custody or control of the governor in the usual course of the duties and business of his office."

[edit] Other executives

The law applies to any "branch, department, office, agency, board, commission, governing authority, or any committee, subcommittee, advisory board or task force of any branch, department, office, agency, board or commission, or any instrumentality of the state."

The records of executives other than the governor are subject to the law: the State Board of Cosmetology, the State Racing Commission, the Office of Financial Institutions, the Cemetery Board, the State Board of Certified Public Accountants, the State Board of Architectural Examiners, the Real Estate Commission, the State Board of Home Inspectors, the State Licensing Board for Contractors, the State Radio and television Technicians Board, the Board of Examiners of Certified Shorthand Reporters, the Auctioneers Licensing Board, the State Board Examiners of Interior Designers, the Real Estate Appraisers State Board of Certification, the State Boxing and Wrestling Commission, the Used Motor Vehicle and Parts Commission,, the Polygraph Board, and the Manufactured Housing Commission.

[edit] Courts

Louisiana's sunshine law doesn't refer to the state's courts.

The Louisiana Supreme Court created an exception to the law based in its "inherent authority". In 2001, in Bester v. Louisiana Supreme Court Commission on Bar Admissions, the court exempted these documents from the law:

  • Bar examination model answers.
  • Materials related to the grading guidelines.
  • Materials related to an applicant's bar examinations.

These documents are not exempt according to the statute. In asserting that the documents were to be exempt, the state's highest court said that it had the "inherent authority" to create such exceptions.

[edit] Fees that may be charged

No fee is charged to view public records as long as they ask to view the records during normal office hours. Custodians of records are allowed to charge a "reasonable fee" to requestors who ask to view records outside of normal office hours.

Fees for copies of records are established by the custodian and must be "reasonable."

Also:

  • Indigent persons who are state residents may be provided copies of records without charge or at a reduced charge.
  • If the custodian determines that copies of public documents will be used only for a "public purpose", the custodian may furnish them without charge or at a reduced charge. An example of a "public purpose" is the use of the records in a hearing before a governmental regulatory commission.
  • Two state appellate courts have reached opposite conclusions as to whether courts have the discretion to order that documents be provided to an inmate without charge or at a reduced charge. State v. Jean, 2003, said a court has discretion to order that copies be provided at no cost. Diggs v. Pennington, 2003, said a lower trial court did not err when it said it lacked the power to compel a state agency to provide a free report to an inmate.[9]

[edit] State budget online

Article VII Section 12: "Reports and records of the collection, expenditure, investment, and use of state money and those relating to state obligations shall be matters of public record, except returns of taxpayers and matters pertaining to those returns." [10]

All forms of the State Budget are available for online viewing through the office of Planning and Budget.[11]

[edit] Notable requests

[edit] ACLU, 2008

In February 2008, the ACLU of Louisiana requested documents from the Orleans Parish Prison on prisoner deaths at the city jail. Sheriff Marlin Gusman said that the ACLU could have the documents, if they first gave him $1.75 million. After nearly a year of negotiations, the sheriff agreed to provide the documents for $1,007. The ACLU's executive director speculated that the sheriff was trying to hide conditions at the jail. The sheriff's department suggested that the ACLU's request was vague and unreasonable.[12]

[edit] Relevant legal cases

[edit] Open meetings

Article 12 Section 3: "No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law." [13]

  • Every Government entity holding an open meeting must allow time for public comment
  • Every school board meeting must allow public comment before every vote.
  • People who willfully disrupt a meeting so that business can not be conducted may be removed.
  • Each public entity may develop its own "reasonable rules, regulations and restrictions" on public comment and involvement for meetings.

[edit] See also

[edit] External links

[edit] References

  1. ↑ Open Government Guide, Louisiana
  2. ↑ Integrity Index available for download here
  3. ↑ Graded state responsiveness to FOI requests, 2007
  4. ↑ Freedom of Information in the USA, 2002
  5. ↑ Title 44 Part 1, Open Records Scope
  6. ↑ New Orleans City Business, "Public records requests flood local governments", May 11, 2009
  7. ↑ Revised Statutes 44:31
  8. ↑ Title 44 Part 32, Open Records
  9. ↑ RCFP OGG Provisions for fee waivers in Louisiana
  10. ↑ Louisiana State Constitution Article VII S.12, Reports and Records
  11. ↑ Louisiana state budget
  12. ↑ Times-Picayune, "ACLU, Gusman resolve dispute over price tag for public records", January 29, 2009
  13. ↑ Louisiana State Constitution Article XII S.3, Right to Direct Participation
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