FOREWORD

Open records. The Louisiana Public Records Act was first enacted in 1940. Perhaps surprisingly, the statute has not been substantially rewritten since then, although the presumption of the openness of public records was enshrined in the new Louisiana constitution of 1974. It states, "No person shall be denied the right to . . . examine public documents except in cases established by law." La. Const. art. XII, § 3.

In 1978, the Louisiana Legislature substantially rewrote the enforcement section of the Public Records Act. The 1978 amendments added various judicial remedies, including the award of attorneys' fees and costs to prevailing private plaintiffs. The same amendments also provided that a custodian of records who arbitrarily or capriciously violates the statute may be personally liable for actual damages and shall be liable with the public body for the payment of the plaintiff's attorneys' fees. Acts 1978, No. 686, § 1; La. Rev. Stat. Ann. § 44:35. The 1978 amendments also revised that portion of the statute that had provided that only "state electors" and "state taxpayers" had the right to examine records. Since 1978 "any person of the age of majority" may examine records.

As with the Open Meeting Law, the Public Records Act is solidly established in Louisiana law. The core provisions are unlikely to be modified materially, except as specific enforcement problems arise. For example, the 1988 Legislature adopted legislation to specify the contents of the "initial report" of a crime. La. Rev. Stat. Ann. § 44:3(A)(4). At the same session, the Legislature amended the enforcement provisions of the Act to impose a $100 per day civil penalty personally upon any records custodian who arbitrarily refuses to respond to a records demand within the statutory period of three working days. See La. Rev. Stat. Ann. § § 44:32, 44:35(E). The amendment was proposed in response to Hill v. Mamoulides, 482 So. 2d 25 (La. App. 5th Cir. 1986), which held that a custodian's unexplained failure to respond timely did not foreclose the custodian from later asserting that the requested records were not public.

The following trends are worth noting:

More often than in the past, Louisiana courts are applying the elastic notion of constitutional "privacy" to defeat records requests. Although the Louisiana Supreme Court held that there was no exemption in the state's public record laws for employment applications, (Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So. 2d 562. (La. 1997)), recent decisions have since carved out greater privacy rights for employee records in other contexts. Eastbank Consol. Special Serv. Fire Prot. Dist. v. Crossen, 892 So. 2d 666 (La. App. 5th Cir.), writ denied, 897 So. 2d 608 (La. 2005) (determining that personnel files, including records of all disciplinary actions, reprimands, apologies or other personnel documents should remain beyond the scope of the Public Records Act). Louisiana courts still generally protect only information "clearly private in nature" or material that if disclosed would expose someone to "public disgrace." Furthermore, the expectation of privacy must be objectively reasonable, and the privacy interest must be balanced against the public's right to know. See Angelo Iafrate Constr., L.L.C. v. State, 879 So. 2d 250 (La. App. 1st Cir. 2004) (finding employees' expectation of privacy in employee payroll information detailing hourly wages, hours worked, deductions and net paycheck amount outweighed public interest); Local 100, SEIU v. Smith, 830 So. 2d 417 (La. App. 2d. Cir.), writ dismissed, 836 So. 2d 75 (La. 2003) (disclosure of employees' organizational affiliations violated employees' reasonable expectation of privacy); Broderick v. State, Dept. of Environmental Quality, 761 So. 2d 713 (La. App. 1st Cir.), writ denied, 768 So. 2d 1284 (La. 2000) (employee grievance records are exempt from Public Records Act because the information they contain "had the potential to cause embarrassment" and the "public interest would not be further served by disclosure"). During the 2003 session, perhaps in response to these decisions, the Louisiana Legislature amended the Public Records Act to expressly exclude certain public employee documents, including direct deposit payroll information, Social Security numbers and direct deposit information from personnel files (subject to some exceptions), and all medical and insurance-related documentation in personnel files. La. Rev. Stat. Ann. § 44:11.

The Louisiana Supreme Court also created a novel exception to the Act by virtue of its "inherent authority," holding that bar examination model answers, any materials related to the grading guidelines or an applicants' bar examinations were also exempt from disclosure. Acknowledging that none of the exceptions enumerated under the law applied to such records and documents, the Court nevertheless reasoned that it could create an exception by virtue of the "inherent authority" vested in it by the legislature. Bester v. Louisiana Supreme Court Comm. on Bar Admissions, 779 So. 2d 715 (La. 2001); see also Louisiana Supreme Court Comm. on Bar Admissions v. Roberts, 779 So. 2d 726 (La. 2001) (restating rule set in Bester).

The statutory exception to the Act for documents relating to "pending criminal litigation" and "pending claims" has been narrowly interpreted to promote greater disclosure in recent years. One court of appeals refused to allow the State Office of Risk Management to designate claims files of a settled case as a "pending claim" merely because related cases were still ongoing. Reasoning that the exclusion refers only to those claims that are still subject to judicial scrutiny, the court ordered production of checks and related documents reflecting the settlement to the newspaper and reporter plaintiffs. Times Picayune Publ'g Corp. v. Bd. of Supervisors, 845 So. 2d 599 (La. App. 2003), writ denied, 852 So. 2d 1044 (La. 2003); see also In re Trestman, 795 So. 2d 398 (La. App. 2001), writ denied, 803 So. 2d 34 (La. 2001) (requiring production of criminal case file to family members after passage of ten years after the crime and finding such an exception to the "pending criminal litigation" exception was not unconstitutional "special legislation).

In other contexts, however, the courts have been more willing to interpret broadly the statutory exceptions to the Act, including finding 911 tapes protected under the "privileged communications between a health care provider and patient" exception. In that case, the appellate court included the dispatch communications center at issue in the statutory definition of a "health care provider," reasoning that the term included persons reasonably believed to be such by the patient. Hill v. East Baton Rouge Parish Dep't of Emergency Med. Servs., No. 2005 1236, 2005 La. App. LEXIS 2611 (La. App. Dec. 22, 2005); but see Kyle v. Perrilloux, 868 So. 2d 27 (La. App. 2003) (holding copies of work papers obtained from the legislative auditor and in the physical possession of a district attorney were not technically protected under by the statutory exception for documents "in the custody or control of the legislative auditor").

Privilege defenses to the Act have similarly been interpreted narrowly in favor of production. Although none of the exceptions under the Act expressly address attorney work product, the Louisiana Supreme Court agreed that Louisiana's general work product exclusion applies to public records that constitute writings, records, or other accounts reflective of an attorney's or expert's mental impressions. Nevertheless, the court held that the audiotapes of witness statements at issue were exempt from disclosure under the Act only to the extent the tapes contained mental impressions, conclusions, opinions or theories of the investigator. Landis v. Moreau, 779 So. 2d 691 (La. 2001).

Interpretations of the procedural provisions of the Act may be less of an impediment to enforcement than once thought. One court of appeal previously held that every one of a District Attorney's 82 employees was required to be joined as an indispensable party to a reporter's action to force public disclosure of the employees' leave records. See Hatfield v. Bush (I), 540 So. 2d 1178 (La. App. 1st Cir. 1989). But on rehearing, the court seemed willing to revisit this ruling, and refrained only because it had not been challenged by either party. See Hatfield v. Bush (II), 572 So. 2d 588 (La. App. 1st Cir. 1990); see also Hilliard v. Litchfield, 822 So. 2d 743 (La. App. 1st Cir. 2002) (finding prisoner was a "person" entitled to bring claim under Public Records Act because status is measured at the time the request was made, not when suit filed). Additionally, the Second Circuit Court of Appeal expanded its statutory interpretation of inspection rights to permit the use of a hand-held scanner in the clerk's office to copy public documents, reasoning that such devices fall outside the prohibition of "placed or installed" reproduction machines. First Commerce Title Co. Inc. v. Martin, 887 So. 2d 716 (La. App. 2d Cir.), writ denied, 896 So. 2d 66 (La. 2005). It should be noted, however, that subsequent to this decision, during the 2005 session, the state legislature amended the language of the statute to prohibit the use of "privately owned copying equipment." La. Rev. Stat. Ann. § 44:32(C)(1)(c). Furthermore, the First Circuit recently issued a troubling decision in Vourvoulais v. Movassaghi, 906 So. 2d 561 (La. App. 1st Cir. 2005), in which it held the Act grants a right of action to enforce the right to inspect or copy the public records only to the person who actually made the request — in this case, a paralegal in a firm representing a construction company, despite the fact she was acting on the direction of an attorney for the benefit of the client. Because the general counsel of the construction company brought the suit instead of the paralegal who signed the request letter, the court vacated the trial court's judgment in his favor. Id. at 465.

Some state appellate courts have arrived at opposite results regarding whether a trial court has the discretion to order the production of public records to an inmate without charge or at a reduced charge, although they were interpreting the same statutory language. Compare State v. Jean, 847 So. 2d 780 (La. App. 3rd Cir. 2003) (holding trial court had discretion to order that copies be made at no cost), with Diggs v. Pennington, 849 So. 2d 756 (La. App.4th Cir. 2003) (stating that trial court did not err in finding it lacked the power to compel agency to provide a free report to inmate).

During the 2003 session, the Louisiana Legislature amended the Public Records Act to exclude the central registry of sex offenders maintained by the Louisiana Bureau of Criminal Identification and Information from the disclosure exception given to other documents collected and maintained by the bureau.: La. Rev. Stat. Ann. § 44:3(A)(7).

During the 2003 session, the Louisiana Legislature amended the Public Records Act to add several exceptions related to security: La. Rev. Stat. Ann. § 44:3.1 (exempting material containing security procedures, criminal intelligence information pertaining to terrorist-related activity, threat or vulnerability assessments created, collected or obtained in the prevention of terrorist-related activity); La. Rev. Stat. Ann. § 44:4.1(15.1) (exempting measures to detect and track public health emergencies); La. Rev. Stat. Ann. § 44:4.1(19) (exempting port security and safety plans).

During the 2003 session, the Louisiana Legislature amended the Public Records Act to add several other exceptions: La. Rev. Stat. Ann. § 44:3(G) (exempting disclosures of certificates of official driving records in the custody and control of the Dep't of Public Safety and Corrections, office of motor vehicles, subject to R.S. 15:521); La. Rev. Stat. Ann. § 44:4.1(7) (exempting records of a person's pretrial diversion program following an arrest for DUI-related activities until the person has successfully completed the intervention program); La. Rev. Stat. Ann. § 44:4.1(8) (exempting records regarding approval of teacher education programs); La. Rev. Stat. Ann. § 44:4.1(27) (Social Security applications and client case folders);

During the 2003 session, the Louisiana Legislature amended the Public Records Act to include several more exceptions related to certain health information: La. Rev. Stat. Ann. § 44:4(36) (documents related to rebates contained in Department of Health and Hospitals and its agents with respect to supplemental rebate negotiations with prescription drug coverage by the Medicaid Program exempted from production); § 44:4(37) (any protected health information as defined in La. R.S. 29:762); § 44:7 (certain hospital records). During the 2005 session, the legislature further amended the Act to provide confidentiality of risk management information in medical malpractice cases. La. Rev. Stat. Ann. § 44:1.1(B)(5).

A statutory exclusion for marketing strategy or strategic plan of a public hospital continues to cut a wide swath across public records (as well as open meetings) disclosure. See La. Rev. Stat. Ann. § 46:1073(C); Op. Att'y Gen. 95-316; Op. Att'y Gen. 95-346. This provision has been a consistent and significant source of press complaints since the last revision of this guidebook.

Open meetings. Louisiana first enacted a rudimentary Open Meeting Law in 1952. The act was flawed in many ways. It had no workable definition of "meeting," lacked procedural and substantive limitations on executive sessions, and failed to provide sanctions for violations. Comment, "Entering the Door Opened: An Evolution of Rights of Public Access to Governmental Deliberation in Louisiana and a Plea for Realistic Remedies," 4 La. L. Rev. 192, 198 n.32 (1980). For example, in 1973, the Louisiana Supreme Court held that the definition of "meeting" in the old law did not include gatherings of public bodies to discuss preliminary or administrative matters if no official action took place. Reeves v. Orleans Parish Sch. Bd., 281 So. 2d 719 (La. 1973).

The Louisiana Constitutional Convention of 1973 considered open meeting issues. The only recorded committee consideration consists of a single memorandum. See Committee on Bill of Rights and Elections, Staff Memo No. 35, Records of the Louisiana Constitutional Convention of 1973: Committee Documents 113. The memorandum stated: "Local and state public bodies in Louisiana have frequently met in executive session to thrash out controversial issues before their open public sessions begin. At the latter session, agreements reached in executive session are publicly approved, often with little debate. The public is thus not involved in the final decision making process . . . ." This, apparently, is the typical situation which this proposal seeks to change.

Reflecting these concerns, the new 1974 Louisiana Constitution included the following open meeting provision: "No person shall be denied the right to observe the deliberations of public bodies . . . except in cases established by law." La. Const. art. XII, § 3. Convention delegates approved this provision overwhelmingly, literally without debate. Comment, supra, at 197.

In light of the new constitutional language, the Louisiana legislature substantially rewrote the Open Meeting Law in 1976. The 1976 legislation provides much of the basis for current law. Thus, the preamble to the Open Meeting Law was rewritten to express a strong public policy favoring open deliberations:

It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of (the Open Meeting Law) shall be construed liberally.

La. Rev. Stat. Ann. § 42:4.1. Other 1976 provisions defined "meeting," established exceptions to the open meeting requirement, and provided sanctions for violations of the law.

The Attorney General has stated that the purpose of the Open Meeting Law is to prevent private meetings of public bodies in which only the "end result" is observed by the public in open meetings, with all important discussion and arguments having taken place behind closed doors. 77 Op. Att'y Gen. 1508 (1977). Most of the revisions in the Open Meeting Law since 1976 have clarified and expanded that basic legislative objective. We will briefly outline those changes in this foreword.

The first wave of significant substantive revisions was enacted in 1979. Acts 1979, No. 681, § 1. The 1976 version of the Open Meeting Law did not apply to committee meetings of public bodies. Phillips v. Board of Supervisors of Louisiana State University, 391 So. 2d 1217 (La. App. 1st Cir. 1980). In 1979, the definition of "meeting" was expanded to include any committee or subcommittee of a public body. The revision also defined the phrase "public body" to include those groups possessing only advisory powers. Acts 1979, No. 681, § 1; La. Rev. Stat. Ann. § 42:4.2(A).

In a similar vein, the 1976 Open Meeting Law had limited the definition of "meeting" to the "official convening" of a public body. The Attorney General had stated that a meeting was "officially" convened when any prior notification, however informal, was given to members of the public body that a meeting would be held. 76 Op. Atty. Gen. 1399 (1976). In 1979, the Legislature removed the word "official" and thereby mandated that any "convening" of a quorum of a public body would constitute a meeting, except for certain "chance meetings" or "social gatherings" Acts 1979, No. 681, § 1; La. Rev. Stat. Ann. § 42:4.2(A)(l), (B).

The 1979 revisions to the statute also clarified two exceptions to the Open Meeting Law. The amendment added "prospective litigation after formal written demand" to those subjects which could be discussed in a closed meeting (which already included, e.g., collective bargaining and pending litigation). The amendment also provided that the discussion of the appointment of a person to a public body could not be held in a closed meeting. Acts 1979, No. 681, § 1; La. Rev. Stat. Ann. § 42:6.1(A)(1), (2).

The 1979 act substantially revised the enforcement sections of the Open Meeting Law. Prior to 1979, any presiding officer who violated the Open Meeting Law, or any person who conspired with such official to hinder attendance by the public, could be fined or imprisoned. The 1979 amendment removed the criminal penalties, and for the first time specified the civil remedies available to a successful plaintiff, including voidability of any measure enacted at an unlawful closed session. A voidability provision had been considered but rejected in 1976. See Comment, supra, at 212. The revised enforcement provisions also extended the right to file suit beyond citizens who were denied rights conferred by the Open Meeting Law to any person who has reason to believe that the law was violated.

In 1981, the Louisiana Legislature for the first time made itself subject to the Open Meeting Law. The law generally applies to the Legislature, except that the statute prescribes different requirements for the Legislature with respect to exemptions, public notice, and written minutes.

Generally, the courts of Louisiana have enforced the Open Meeting Law vigorously in keeping with the state constitutional mandate for open government and the preamble of the law. The Louisiana Press Association and its member newspapers monitor the enforcement of the Open Meeting Law to determine the need for periodic legislative refinements or clarification. At the 1988 Regular Legislative Session, for example, LPA successfully advocated the passage of legislation to overrule a Court of Appeal decision which held that a gathering of a public body to hear a presentation by a public official, but not to discuss it, was not a "meeting." See La. Rev. Stat. Ann. § 42:4.2(A)(1) ("meeting" includes convening of quorum by the public body or another public official to receive information), overruling Common Cause v. Morial, 506 So. 2d 167 (La. App. 4th Cir. 1987), writ denied, 512 So. 2d 458 (La. 1987).

Notwithstanding the strong public policy behind the provisions of the Open Meetings Law, the First Circuit Court of Appeal recently held in that the state constitutional right to observe the deliberations of public bodies and examine public documents under Louisiana Constitution. art. XII, § 3 is not a traditionally "fundamental" and inalienable constitutional right. St. Mary Anesthesia Assocs. Inc. v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 836 So. 2d 379 (La. App. 1st Cir.), writ denied, 840 So. 2d 577 (La. 2003). That case, and the related litigation, Joseph v. Hosp. Serv. Dist. No. 2 of the Parish of St. Mary, 805 So. 2d 400 (La. App. 1st Cir.), writ denied, 813 So. 2d 1088 (La. 2002), contested the constitutionality of the Enhanced Ability to Compete Act ("EACA")which created a statutory exclusion for marketing strategy or strategic plan of a public hospital. La. Rev. Stat. Ann. § 46:1070-1076. The appellate court held that the clear language of the constitution stated that the legislature had the authority to establish exceptions to the public's right to open meetings, and because Section 3 is not a "fundamental, inalienable right, in the sense of those enumerated rights under Article 1," the EACA exception was not unconstitutionally overbroad.