Louisiana

In February 2003, the Public Affairs Research Council of Lousiana Inc. released a year-long study on the state’s public records laws, "Louisiana’s Sunshine Laws: The Promise and Peril of New Technology." In the report, the Council makes several suggestions on how to improve the laws in light of electronic records, including amending the law to include e-mail and Web data as public records and requiring the Lousiana State Archives and Office of Information Technology to post electronic records management guidelines.

Reporter Linda Lightfoot of Baton Rouge’s The Advocate said reporters are often successful accessing records, though e-mail as public record remains a point of contention among legislators. "I think in Louisiana, the press is pretty aggressive, so we do well," she said.
The law. The Public Records Act defines public records to include "cards, tapes, recordings, . . . regardless of physical form or characteristics, including information contained in electronic data processing equipment." La. Rev. Stat. Ann. § 44:1.

"Information contained in electronic data processing equipment" is specifically included in the definition of "public records." La. Rev. Stat. Ann. § 44:1(A)(2). Electronic information therefore is subject to the general provisions of the Public Records Act. See Ops. Att’y Gen. 98-366 (records stored via electronic imaging system); 90-576 (computer records of 911 calls subject to Public Records Act), 90-576 (computer information generated by office of assessor is subject to Public Records Act), 90-398 (computer information regarding student records subject to Public Records Act).

The statute exempts certain records held by a port commission, including "any computer system or program including any computer software or related [materials], and any other computer operating or support materials" when they are part of "any automated broker interface system or any automated manifest system." § 44:4(13). The statute allows records to be stored by "an electronic digitizing process capable of reproducing an unalterable image of the original source document," providing such a system meets state standards. The "electronically digitized copy" is considered an original even if the true original exists. § 44:39.

Cases & opinions. Computer records of property sales and tax assessments must be available for public inspection after non-public records are separated out. La. Op. Att’y Gen. 87-301 (May 4, 1987). Records of assessors, including computer records about sales information, are open to public inspection. La. Op. Att’y Gen. 97-301-A (June 11, 1987). Computer information generated by the office of the assessor is subject to the Public Records Law. The records belong to the public "for informational, commercial, investigative, legal or any other lawful purpose." La. Op. Att’y Gen. 90-330 (July 26, 1990). Computer records of 911 calls, including names, addresses and telephone numbers, are public. La. Op. Att’y Gen. 90-576 (Dec. 4, 1990). A custodian must comply with a request even if the information is kept in a format different from that which is requested; however, the custodian is not required to create a new record if the requested record does not currently exist. Nungesser v. Brown, 667 So.2d 1036 (La. 1996).

Generally, a records requestor need only describe records sought with enough specificity that a custodian may identify and locate records. Op. Att’y Gen. 89-602A. Thus, if a requestor reasonably describes information that the custodian can locate through a search of a database, the request should be granted. Arguably, customized requests are analogous to "creating" a document not already in existence. See, e.g., Nungesser v. Brown, 667 So. 2d 1036 (La. 1996) (reversing Court of Appeal decision that required commissioner of insurance to provide a list of certain investments requested by plaintiff, where list did not exist in the form specified by the plaintiff). In the context of electronic databases, however, the Nungesser analysis would largely negate the act’s specific coverage of "information contained in electronic data processing equipment" and would be contrary to the general rule requiring that the Public Records Act be construed so as to favor disclosure. Title Research Corp. v. Rausch, 450 So. 2d 933, 936 (La. 1984).

Fees. The law does not permit levying fees for examining or reviewing records during normal business hours. La. Rev. Stat. Ann. § 44:32(A) (West 1992). A records custodian may charge "reasonable fees" for copies. § 44:32(C)(1)(a) (West Supp. 1998). State agency fees may be set by regulation or law. Fees may be waived for indigent requesters. § 44:32(C)(2). Agencies may not charge for examination of computer records, but may charge reasonable fees for a copy. La. Op. Att’y Gen. 87-301 (May 4, 1987). The fee should reflect only the expense of generating the information, not its value. La. Op. Att’y Gen. 90-330 (July 26, 1990).

E-mail. No specific provisions, but under La. Rev. Stat. Ann. § 44:1, governmental e-mail should be treated as a public record and should be produced to a requestor absent an applicable exemption.

Resources. Louisiana Press Association