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Louisiana

Open Government Guide

Author

Mary Ellen Roy
Roym@phelps.com
Dan Zimmerman
dan.zimmerman@phelps.com
Phelps Dunbar LLP
365 Canal Street, 20th Floor
New Orleans LA 70130
Tel. (504) 566-1311
Fax (504) 568-9130

and

Jack M. Weiss
jmweiss@liskow.com 
Liskow & Lewis
701 Poydras St Ste 5000
New Orleans LA, 70139
Tel. (504) 556-4048

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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)), more 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"). 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.

Numerous recent decisions have addressed privacy concerns.  See, e.g., Shane v. Parish of Jefferson, 209 So.3d 726 (La. 2015) (privacy interests of private citizen, whose e-mails to employee of public agency were public records, had to be balanced against the right of the public to inspect public records – records were redacted to conceal his identity);

Rasier, LLC v. City of New Orleans, 222 So.3d 806 (La.App. 4th Cir. 2017) (Uber driver had a reasonable expectation of privacy in his personal information, which Uber transmitted to city pursuant to ordinance); Capital City Press, L.L.C. v. LSU Bd. of Sup'rs, 168 So.3d 727 (La.App. 1st Cir. 2014) writ denied, 168 So.3d 401 (La. 2015) (requiring disclosure only of the names of the three candidates for university president that were interviewed, not the 100 people who replied to the advertisement or the 35 who survived the initial review); Beckett v. Serpas, 112 So.3d 348 (La.App. 4th Cir. 2013) (police officers had a reasonable expectation of privacy in personal information contained in records of investigations by the Public Integrity Bureau); Cull v. Cadaro, 68 So.3d 1161 (La.App. 4th Cir. 2011) (no reasonable expectation of privacy in the data contained within the public records of parish jury commission, with the exception of Social Security information).

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 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).

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 . . . ."

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. § 42:12. 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.

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. 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. § 42:13 ("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 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.

The 2010 revision re-numbered the sections of the law but made no substantive changes.

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Open Records

I. Statute

A. Who can request records?

1. Status of requester

In general, "any person of the age of majority" may request records. La. Rev. Stat. Ann. § 44:31. However, in Vourvoulais v. Movassaghi, 906 So. 2d 561 (La. App. 1st Cir. 2005), the court held that the Act grants a right of action to enforce the right to inspect or copy the public records to only the person who actually made the request — in that 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. One exception to this rule is that a convicted felon in custody who has exhausted his or her appellate remedies may not request records unless the request is limited to grounds upon which the individual could file for post-conviction relief. La. Rev. Stat. Ann. § 44:31.1; however, an attorney for an inmate is not bound by § 31.1 and is entitled records, Boren v. Taylor, 223 So.3d 1130 (La. 2017).  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 despite having exhausted his appellate remedies when he brought suit, because status is measured at the time the request was made, not when suit filed). Also, public bodies (such as a city council or port district), may not request records, although the individuals who make up a public body may make a request. Plaquemines Parish Council v. Petrovich, 629 So. 2d 1322, (La. App. 4th Cir. 1993), writ denied 634 So. 2d 390 (La. 1994).

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2. Purpose of request

The requester's purpose may not affect his right to obtain records, as 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." La. Rev. Stat. Ann. § 44:32; Bauer v. Maestri, 676 So. 2d 1096 (La. App. 5th Cir. 1996) (irrelevant that requester previously sought same records through discovery); Webb v. Shreveport, 371 So. 2d 316 (La. App. 2nd Cir.), writ denied, 374 So. 2d 657 (La. 1979). See Op. Att'y Gen. 90-330, rejecting an assessor's contention that requester's desire to sell tax rolls for profit affected public record status of rolls. One exception to this rule is that a convicted felon in custody who has exhausted his or her appellate remedies may request only records that are related to post-conviction relief. La. Rev. Stat. Ann. § 44:31.1.  However, an attorney for an inmate is not similarly limited, Boren v. Taylor, 223 So.3d 1130 (La. 2017).

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3. Use of records

The law makes no restrictions on subsequent use of information provided. For example, an attorney general opinion clarifies that a public university may not deny access to a weekly newspaper because it was publishing information obtained from the university in a "negative and disparaging manner." Op. Att'y Gen. 93-482.

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B. Whose records are and are not subject to the act

1. Executive branch

Records in the custody or control of the Governor and which are used in the discharge of his duties are exempt. La. Rev. Stat. Ann. § 44:5. This exemption extends to records of the Inspector General's Office, which is part of the Office of the Governor. Op. Att'y Gen. 92-128. Records of other executives are not exempt.

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2. Legislative bodies

Legislative bodies are covered by the statute. La. Rev. Stat. Ann. § 44.1. See Times-Picayune v. Johnson, 645 So. 2d 1174 (La. App. 4th Cir. 1994), writ denied, 651 So. 2d 260 (La. 1995) (individual legislators are "custodians" of nomination forms for legislative scholarships to private university). In Copsey v. Baer, 593 So. 2d 685 (La. App. 1st Cir. 1991), writ denied, 594 So. 2d 876 (La. 1992), however, the court held that the legislative work files related to two bills from prior sessions of the Louisiana legislature were privileged from public records disclosure under the legislative privileges and immunities clause of the Louisiana Constitution, Article III, §  8. The court found that the "demand for legislative files in this case calls for an inquiry into the motivations behind the preparation and introduction of legislative instruments into the Louisiana Legislature. . . ." Id. at 689.

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3. Courts

Courts may determine when and under what circumstances sensitive materials should be shielded from disclosure, by finding that parties have the burden of making a specific showing that their privacy interests outweigh the public’s constitutional right of access to the record.  Copeland v. Copeland, 966 So.2d 1040, 1044-45 (La. 2007). Agencies under the direction of the judiciary are clearly subject to the act. La. Rev. Stat. Ann. § 44:1(A)(1); Denoux v. Bertel, 682 So. 2d 300 (La. App. 4th Cir. 1996), writ denied, 685 So. 2d 144 (La. 1997) (indigent defender program is public body subject to act); Cull v. Cardaro, 68 So.3d 1161,  (La.App. 4th Cir. 2011) (juror venire records of parish’s Jury Commission subject to Public Records Act; Henderson v. Bigelow, 982 So.2d 941 (La.App. 4th Cir. 2008) (Court’s Judicial Expense Fund subject to the Act. The Louisiana Supreme Court, however, 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 applicant's bar examinations are 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).

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4. Nongovernmental bodies

Nongovernmental bodies receiving public funds are subject to the statute, to the extent that the records pertain to the receipt of public funds. See La. Rev. Stat. Ann. § 17:3390 (nonprofit corporations that support public colleges and universities); Guste v. Nicholls College Foundation, 564 So. 2d 682 (La. 1990) (records of nonprofit corporation organized to support public university are public to the extent records relate to receipt and expenditure of mandatory student dues paid initially by university to alumni association, but nevertheless constituting public funds); Lewis v. Spurney, 456 So. 2d 206 (La. App. 4th Cir. 1984), writ denied, 457 So. 2d 1183 (La. 1984), writ denied, 458 So. 2d 488 (La. 1984) (financial records of the Louisiana World Exposition, a private nonprofit corporation which created and operated the 1984 World's Fair, are public records insofar as those records date from the time LWE received state funds); Carter v. Fench, 322 So. 2d 305 (La. App. 1st Cir. 1975), writ denied, 325 So. 2d 277 (La. 1976) (records of public university student government association budget are public records; once tuition fees are collected by the university these fees become public funds, and those agencies which are the ultimate recipients of such funds are subject to the Public Records Act insofar as their financial records are concerned); but see Op. Att'y Gen. 93-214 (other records of student government association generally not subject to Public Records Act); and Dorson v. State of Louisiana, 657 So. 2d 755 (La. App. 4th Cir.), writ denied, 662 So. 2d 472 (La. 1995) (federally funded and authorized committees within state university system not subject to Public Records Act).

A group whose members include governmental officials is covered if it receives public funds as its primary source of income, performs a public service, and renders a public function. Op. Att'y Gen. 78-282 (associations of public officials such as the Louisiana School Board Association, the Louisiana Municipal Association, and the Louisiana Police Jury Association are covered by Public Records Act). See also Op. Att'y Gen. 93-53 (Personnel board composed of Mayor and Selectmen of parish is subject to Public Records Act). But see La. Rev. Stat. Ann. § 17:3390, which, as to public college and university support foundations, would appear to limit disclosure to records of receipt and expenditure of public funds regardless of extent of public funding or public functions performed. The statute provides for the same limited records disclosure even if public university board members and employees serve on the foundation board, as long as they do not constitute a majority of the voting members. Id.

Nongovernmental bodies that perform governmental functions are subject to the Public Records Act.  New Orleans Bulldog Society v. Louisiana Society for the Prevention of Cruelty to Animals, 222 So.3d 679 (La. 2017) (SPCA, that provides animal control services under contract with city, subject to Public Records Act).

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5. Multi-state or regional bodies

Such groups are not specified in the Statute. Louisiana regional planning bodies would be covered, however. See Op. Att'y Gen. 92-476 (Lake Pontchartrain Basin Foundation).

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6. Advisory boards and commissions, quasi-governmental entities

Advisory boards, commissions and task forces, and "quasi-public nonprofit corporations designated . . . to perform a governmental or proprietary function" are covered by the statute. La. Rev. Stat. Ann. § 44:1. See, e.g., Op. Att'y Gen. 86-515-A (not-for-profit hospital is designated to perform a governmental or proprietary function and hence is covered); Op. Att'y Gen. 84-66 (parish [county] council on aging, a quasi-public nonprofit corporation created pursuant to state statute, is covered); But see La. Rev. Stat. Ann. § 17:3390, supra (university foundations); Op. Att'y Gen. 92-404 (parish voluntary councils on aging that receive and expend governmental funds are subject to act "to the extent that they [perform] governmental functions . . ., [receive and disburse] public funds, and/or [use] public facilities and resources," but not covered as to expenditures of private funds not commingled). See also Op. Att'y Gen. 92-476 (Lake Pontchartrain Basin Foundation is covered); Op. Att'y Gen. 92-434 (nonprofit corporation affiliated with state-owned medical facility); Op. Att'y Gen. 84-120 (Convention and Visitors Bureau created by parish [county] governing authority is covered); Op. Att'y Gen. 93-220, and Op. Att'y Gen. 81-1153 (Board of Commissioners of the City Park Improvement Association possesses policy-making, advisory, or administrative functions and hence is covered); Op. Att'y Gen. 93-780 (Records of TMSEL, a private company which operates RTA (itself a public body created by the legislature to operate New Orleans public transit system), are public records to the extent that they concern dealings with the RTA; Op. Att'y Gen. 93-583 (Louisiana Insurance Guaranty Association, a "nonprofit unincorporated legal entity" created to address public insurance concerns, is subject to Public Records Act); Op. Att'y Gen. 94-442 (FloodComm Corp., a "nonprofit public benefit" corporation, created by Orleans Levee district to own, lease, and develop properties, is covered by act); Op. Att'y Gen. 94-259 (members of board of directors of Louisiana Development Partnerships Inc., a nonprofit, government created corporation are subject to act).

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7. Others

The Third Circuit offered an interesting dictum in Burkett v. UDS Management Corp., 741 So. 2d 838 (La. App. 3rd Cir.), writ denied, 748 So. 2d 1150 (La. 1999). While the case  involved public records in the hands of a contracted private corporation, the court observed that "UDS argues that because no Louisiana Court has ever held the records of a private corporation to be subject to public inspection, this court may not now do so. However, we find no statutory or jurisprudential prohibition of such an order, if other factors allowing inspection are present." In Burkett, the court ordered records of a public body Water District in the possession of a private management company to be produced. Id.

In Community Press, LLC v. CH2M Hill, Inc., 2012 WL 601880, (La.App. 1st Cir. 2/10/12), the Court of Appeal reversed a trial court’s grant of summary judgment that had held that a private company that, by contract, performed “virtually all functions of the city government,” was not subject to the Public Records Act.  While agreeing with the lower court that the private company was not a “branch, department, agency, political subdivision or governing authority,” the Court remanded the case to the district court to determine whether public funding of, or the performance of governmental functions by, the private company brought it within the Public Records Act. In CII Carbon v. St. Blanc, 764 So. 2d 1229 (La. App. 1st Cir. 2000), however, the court held that data in the possession of a regulated utility that the Louisiana Public Service Commission had access to but had never had in its possession was not a "public record" under the Act.

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C. What records are and are not subject to the act?

1. What kinds of records are covered?

The records covered by the act include all records "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 [the] 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 [the] state, are 'public records'. . . ." La. Rev. Stat. Ann. § 44:1. "The definition is virtually all inclusive. . . . It covers virtually every kind of record and every kind of written, printed or reproduced materials used in the conduct, transaction or performance of any duty or function of a public office. . . ." Caple v. Brown, 323 So. 2d 217, 220 (La. App. 2d Cir. 1975); Op. Att'y Gen. 87-301 (computer records of property sales and assessment rolls are covered by the Public Records Act). But see the decision in Angelico v. Cannizzaro, 543 So. 2d 1064 (La. App. 4th Cir. 1989), holding that a special grand jury report critical of the district attorney's handling of a sales tax irregularity investigation was not a public record.

In Shane v. Parish of Jefferson, 209 So.3d 726 (La. 2015), e-mails about private political matters, that were located on government servers, became public records when they became part of a government-ordered audit of the agency that had the records because the records were “used” in the audit.  If not for the audit, the records may not have been held to be “public records.”

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2. What physical form of records are covered

The physical forms of records covered include papers as well as photographs, tapes, microfilm, and any other documentary material "regardless of physical form or characteristics, including information contained in electronic data processing equipment. . . ." La. Rev. Stat. Ann. § 44:1; Op. Att'y Gen. 90-330; Op. Att'y Gen. 87-301 (computer records of the assessment rolls are covered by the Public Records Act); Op. Att'y Gen. 98-366 (custodian should attempt to honor all requests to review records stored in electronic imaging format during normal business hours and without charge). One opinion of the Attorney General, however, summarily concludes that a custodian is not obligated to "run any extraordinary errand or report" and is "not required to present the information in a specialized format." Op. Att'y Gen. 92-367.

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3. Are certain records available for inspection but not copying?

All records available for inspection are also available for copies. La. Rev. Stat. Ann. § 44:32(C)(l), (2).

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4. Telephone call logs

No specific provision, but under the Act, telephone call logs should be treated as a public records and should be produced to a requester absent an applicable exemption.

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5. Electronic records

"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). However, privacy issues may be raised. See Ops. Att'y Gen. 01-155 (monitoring and electronic recording of board members' private computer equipment under a public records request would violate individual members' right to privacy).

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a. Can the requester choose a format for receiving records?

No specific provision. The requestor can choose to receive electronic records in electronic format. St. Tammany Parish Coroner v. Doe, 48 So.3d 1241 (La.App. 1st Cir. 2010); Johnson v. City of Pineville, 9 So.3d 313 (La.App. 3d Cir. 2009).  But see Op. Atty Gen. 92-367 (custodian is not required to present information “in a specialized format”).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

No specific provision. For public records generally, however, the requester need only describe records sought with enough specificity that custodian may identify and locate records. Op. Att'y Gen. 89-602A. Thus, if a requester 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).

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c. Does the existence of information in electronic format affect its openness?

According to the language of La. Rev. Stat. Ann. § 44:1, records otherwise within definition are public records "regardless of physical form or characteristics, including information contained in electronic data processing equipment." Apart from possible misapplication of the rationale that a custodian need not "create" a document, see Nungesser v. Brown, supra, the existence of information in electronic format should not affect its openness.

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d. Online dissemination

No specific provision.

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6. How is email treated?

The statutory definition of “public record” includes all “records . . . regardless of physical form or characteristics.”  La. Rev. Stat. Ann. § 44:1.  Thus, governmental e-mail should be treated as a public record and should be produced to a requester absent an applicable exemption.

The Act defines “public records,” as records 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.” There is no limitation based on where the records are located.  Thus, private e-mails on government computers or servers should not be held to be “public records,” while public matters on private e-mail should be subject to Act.

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7. How are text messages and instant messages treated?

No specific provisions, but under the Act, governmental text messages or instant messages should be treated as a public record and should be produced to a requester absent an applicable exemption.  The statutory definition of “public record” includes all “records . . . regardless of physical form or characteristics,”  La. Rev. Stat. Ann. § 44:1, without regard to where the records are located.

The Act defines “public records,” as records 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.”  Thus, private texts on government computers or servers may not be held to be “public records,” while   public matters on private devices should be subject to the Public Records Act.

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8. How are social media postings treated?

No specific provision, but under the Act, social media postings and messages should be treated as public records and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.”

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9. Computer software

No specific provision, but under the Act, computer software and/or file metadata should be treated as a public record and should be produced to a requester absent an applicable exemption, if it otherwise falls within the definition of “public record.”  However, “any documentary material of a security feature of a public body's electronic data processing system, information technology system, telecommunications network, or electronic security system, including hardware or software security, password, or security procedure, process, configuration, software, and code is not a ‘public record.’”  La. Rev. Stat. Ann. § 44:1(A)(2)(b).

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D. Fee provisions or practices

1. Levels or limitations on fees

No fee shall be charged to any person to examine or review any public records unless the person requests to view the records outside of regular office hours in which case the person examining the record shall pay reasonable compensation for the custodian. La. Rev. Stat. Ann. § 44:32(A), (C). The custodian should attempt to honor all requests during normal business hours. An order requiring after hour examination is subject to "strict scrutiny" and will be allowed only "when the request is of such a magnitude that it disrupts normal office procedure to the point where the office ceases to operate." Op. Att'y Gen. 98-366; Op. Att'y Gen. 92-427; Op. Att'y Gen. 81-614.

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2. Particular fee specifications or provisions

Except for searches outside of regular office hours, no fees may be charged to examine or inspect a record. La. Rev. Stat. Ann. § 44:32(C)(3).

Fees for copies of records are established by the custodian and must be "reasonable." La. Rev. Stat. Ann. 44:32(C).  Fees for copies of records of state agencies are charged according to the uniform fee schedule adopted by the commissioner of administration unless otherwise fixed by law. La. Rev. Stat. Ann. § 44:32(C).

The fee for an autopsy report is the same as that charged by the registrar of vital records for a death certificate, with the exception that one free copy must be provided to the decedent's next of kin. La. Rev. Stat. Ann. § 33:1563(J).

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3. Provisions for fee waivers

Copies of records may be furnished without charge or at a reduced charge to indigent persons of the state. Also, copies of state public records may be furnished without charge or at a reduced charge if the custodian determines that the use of such copies will be limited to a public purpose, including but not limited to use in a hearing before any governmental regulatory commission. La. Rev. Stat. Ann. § 44:32(C)(2); see also Op. Att'y Gen. 95-102 (custodian of records may use discretion to provide copies free of charge to indigent persons).

State appellate courts have arrived at conflicting  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 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).

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4. Requirements or prohibitions regarding advance payment

Advance payment is required only if examination is to be conducted outside of regular office hours and fees include reasonable compensation for the custodian or custodian's representative. La. Rev. Stat. Ann. § 44:32(A).

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5. Have agencies imposed prohibitive fees to discourage requesters?

We are aware of isolated instances in which a custodian demanded seemingly excessive fees, but we do not believe that custodians are using the fee provisions to frustrate the purposes of the Act except in isolated cases.

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6. How are fees for electronic records determined?

There is no specific provision for the records of most public bodies. Except for the records of state agencies, the fees are established by the custodian and must be "reasonable." Fees for copies of records of state agencies are charged according to a uniform fee schedule adopted by the commissioner of administration unless otherwise fixed by law. La. Rev. Stat. Ann. § 44:32(C). That fee schedule provides that "charges for copies of public records on preprinted computer reports shall be at the same rate [as non-computer records]. Each agency shall develop a uniform fee schedule for providing printouts of public records stored in a computer data base utilizing routine utility programs . . . . An estimated cost shall be given for request for reproduction of public records stored in a computer which require program modification or specialized programs. The requesting party shall be advised of the estimate . . . but the actual cost for reproduction, including programming costs, shall be charged if it differs from the estimate." LAC 4:301. But see St. Tammany Parish Coroner v. Doe, 48 So.3d 1241 (La.App. 1st Cir. 2010) (requestor not charged for “apparently negligible” cost of electronic format on which requested data would be down-loaded).

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E. Who enforces the act?

The district court for the parish in which the office of the custodian sits. 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 requester. La. Rev. Stat. Ann. § 44:35(B). A requester may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief after being denied the right to inspect or copy records by a final determination in writing by the custodian or the passage of five days from the date of the request, exclusive of Saturdays, Sundays, and legal public holidays. La. Rev. Stat. Ann. § 44:35(A).

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1. Attorney General's role

The Attorney General has no enforcement role.  His only role is to “establish a program for educating the general public, public bodies, and custodians regarding the provisions of” the Public Records Act, which “may include brochures, pamphlets, videos, seminars, and Internet access to information which provides training on the provisions of this Chapter, including the custodian's responsibilities in connection with a request for records and the right of a person to institute court proceedings if access to a record is denied by the custodian.”  La. Rev. Stat. Ann. § 44:31.2.

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2. Availability of an ombudsman

None.

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3. Commission or agency enforcement

None.

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F. Are there sanctions for noncompliance?

Any noncompliance with the order of the court may be punished as contempt of court. La. Rev. Stat. Ann. § 44:35(B).

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G. Record-holder obligations

1. Processing records requests

Custodians will sometimes ask a requestor to clarify a vague request or narrow a broad request.

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2. Proactive disclosure requirements

None.  Governmental bodies are not required to make proactive disclosures absent a public records request.

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3. Records retention requirements

Minimum of three years, or as set out in “records retention schedules developed and approved by the state archivist.”  La. Rev. Stat. Ann. § 44:36.

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A. Exemptions in the open records statute

1. Character of exemptions

All exceptions or exemptions must be set out in the Public Records Act or in the Constitution.  The Act contains numerous exceptions and exemptions, as well as a section that merely lists, by statute number, exceptions or exemptions found in other titles of the Revised Statutes, thus satisfying the requirement that all exceptions or exemptions must be in the Public Records Act.

The constitutional right of privacy is often invoked to defeat or limit public records requests. See La. Const. art. I, §  5; Trahan v. Larrivee, 365 So. 2d 294 (3rd Cir. 1979); see also 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). Despite the holding in Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So. 2d 562 (La. 1997) where the Louisiana Supreme Court declined to recognize a privacy exemption from the Act absent clear statutory grounding, more courts have been willing to apply the constitutional right of privacy to limit production of certain requests. 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 would violate employees' reasonable expectation of privacy). Nonetheless, the expectation of privacy must be objectively reasonable, and the privacy interest must be balanced against the public's right to know.  See Hilbun v. State Division of Administration, 745 So. 2d 1189 (La. App. 1st Cir. 1999) (investigative report concerning one employee's activities is not exempt); Times-Picayune v. New Orleans Aviation Board, 742 So. 2d 979 (La. App. 5th Cir.), writ denied, 751 So. 2d 257 (La. 1999) (applications for determining Disadvantaged Business Enterprise are not exempt).

Additionally, the Louisiana Supreme Court 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 custodian's power to enforce most exemptions is discretionary. Some exemptions, especially those found outside the statute itself, are not. See, e.g., La. Rev. Stat. Ann. § 44:3(B) (records pertaining to the identity of any confidential source of information of certain specific state agencies or officers are privileged and no officer or employee may disclose such records except with the written consent of the chief officer of the agency).

The Louisiana statutory exemptions are not patterned after the federal statute, although the Attorney General may refer to federal FOIA precedents in his opinions construing the Louisiana act.

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2. Discussion of each exemption

a. Records in use in an investigation by the legislature. La. Rev. Stat. Ann. § 44:2.

b. The following records maintained by prosecutors, law enforcement officials, correctional agencies, investigators, communications districts (911 agencies), intelligence agencies, public water districts , and public health investigators. La. Rev. Stat. Ann. § 44:3(A)(l)-(7).

(1) Records pertaining to pending or reasonably anticipated criminal litigation until such litigation has been finally adjudicated or otherwise settled. La. Rev. Stat. Ann. § 44:3(A)(l). This exception has been construed to prevent disclosure of grand jury records, Revere v. Reed, 675 So. 2d 292 (La. App. 1st Cir. 1996); Hewitt v. Webster, 118 So. 2d 688 (La. App. 2nd Cir. 1960), but see Op. Att'y Gen. 95-137 (addresses of potential and seated grand jurors are public record). The exception also has been used to prohibit disclosure of police and arrest records of the accused during his term in custody, State v. Walker, 344 So. 2d 990 (La. 1977), and police department reports, an analysis of objects found at scene of offense, copies of pictures taken of defendants at lineup, and copies of statements allegedly made by witnesses or prospective witnesses which the state intends to use at trial, State v. Ball, 328 So. 2d 81 (La. 1976). The determination of whether a specific record pertains to "pending criminal litigation" may be tested in court on a case-by-case basis. The act "requires more than a judicial acceptance of an assertion of privilege by a prosecutor; there must be an opportunity for cross examination and presentation of evidence (at an adversary hearing) to contradict the claim of privilege." Cormier v. DiGiulio, 553 So. 2d 806 (La. 1989), citing with approval, Freeman v. Guaranty Broad. Co., 498 So. 2d 218 (La. App. 1st Cir. 1986); accord, Revere v. Layrisson, 593 So. 2d 397, 399 (La. App. 1st Cir. 1991). The Second Circuit Court of Appeal held that the availability of post-conviction relief does not constitute "criminal litigation" that is either "pending" or "reasonably anticipated." Harrison v. Norris, 569 So. 2d 585 (La. App. 2d Cir. 1990), writ denied, 571 So. 2d 657 (La. 1990). In Lemmon v. Connick, 590 So. 2d 574 (La. 1991), the Supreme Court approved Harrison.

A Court’s determination of whether criminal litigation is “reasonably anticipated” is “guided by objective factors” including “whether criminal litigation may still be initiated given the prescriptive period [statute of limitations] of the offense to be charged; the temporal and procedural posture of each case; whether criminal litigation has been finally adjudicated or otherwise settled; the assertion of the prosecutorial authority as to its intent or lack thereof to initiate criminal litigation; whether the prosecutorial authority has taken objective, positive and verifiable steps to preserve its ability to initiate criminal litigation, including, but not limited to, preserving evidence, maintaining contact with witnesses, and continuing an investigation; the time it would take to appropriately investigate and try an offense; the prosecutor’s inherent authority to determine whom, when and how he will prosecute; the severity of the crime; the availability of witnesses, victims and defendants; the spoilation of evidence; the reasonable likelihood that a missing witness or an absconded defendant might be found; and the reasonable likelihood that additional witnesses might be willing to come forward with the passage of time.”  In re Matter Under Investigation, 15 So.3d 972, 992 (La. 2009).

This exemption applies only to records held by the specified agencies, not to the Department of Health and Hospitals or the Division of Administration.  McKay v. State, Div. of Admin., 143 So.3d 510 (La.App. 1st Cir. 2014).

Since Lemmon, the First and Fifth Circuit Courts of Appeal have defined "criminal litigation" as "an adversarial contest begun by formal accusation and waged in judicial proceedings in the name of the State, by the district attorney on the one hand, and against the defendant on the other." Nix v. Daniel, 669 So. 2d 573 (La.  App. 1st Cir.), writ denied, 681 So. 2d 360 (La. 1996), citing Voelker v. Miller, 613 So. 2d 1143 (La. App. 5th Cir. 1993), citing Harrison, 569 So. 2d at 589. Similarly, criminal litigation is "pending" only when the formal accusation is instituted by the district attorney or grand jury, Id., and criminal litigation is "reasonably anticipated" only when the district attorney concludes that "it is probable that an arrest will be made and formal accusation will be instituted." Id. Using these definitions, the 5th Circuit has determined that Federal habeas corpus proceedings are not criminal litigation under the exception, Voelker v. Miller, 613 So. 2d 1143 (La. App. 5th Cir. 1993).

(2) Records which would identify or which would tend to reveal the identity of a confidential source or information. La. Rev. Stat. Ann. § 44:3(A)(2). But the identity of a confidential informant is not privileged when the state police have publicly identified the person. Freeman v. Guaranty Broad. Corp., 498 So. 2d 218 (La. App. 1st Cir. 1986).  That the police may have marked a document as “confidential” is not sufficient to claim this exemption.  There must be an indication that the source requested that his identity be confidential.  Posner v. Gautreaux, 192 So.3d 120 (La. App. 1st Cir. 2016).

(3) Records which contain investigative or security procedures or techniques, criminal intelligence information pertaining to terrorist-related activity, or threat or vulnerability assessments collected or obtained in the prevention of terrorist-related activity. La. Rev. Stat. Ann. § 44:3(A)(3). See Op. Att'y Gen. 92-552 (§ 44:3(A)(3) exemption refers to investigative procedures and techniques, not to information furnished to ABC unit in license application).

(4) Records of the arrest of a person until the arrested party has been adjudged or pleads guilty. Exceptions: initial investigative reports, booking records, summons or citation records and bill of information records are public records, any information that would reveal undercover or intelligence operations, any information that would reveal identity of a victim of a sexual offense. A 1988 amendment to this section specifies that the initial investigative report must set forth a narrative description of the alleged offense, the name and identification of each person charged with or arrested for the alleged offense, the time and date of the alleged offense, the location of the alleged offense, the property involved, the vehicles involved, and the names of investigating officers. La. Rev. Stat. Ann. § 44:3(A)(4). Cormier v. DiGiulio, 553 So. 2d 806 (La. 1989) (initial report of officers "investigating a complaint" not limited to reports on complaints received from the public; covers initial reports on all matters police investigate, even on their own initiative); State v. McEwen, 504 So. 2d 817 (La. 1987) (initial report must include all information obtained by officer in the initial investigation of complaint; selective information cannot be placed in the initial report with the remainder placed in a separate and exempt supplemental report); State v. Shropshire, 471 So. 2d 707 (La. 1985) (labeling initial investigative report an "incident report" does not exempt it from Public Records Act); Hilliard v. Litchfield, 822 So. 2d 743 (La. App. 1st Cir. 2002) (initial report of officers investigating the complaint not a public record); Op. Att'y Gen. 91-390 (public university campus police initial reports covered); Francois v. Capitol City Press, 166 So. 2d 84 (La. App. 3rd Cir. 1964) (police log books used to record all activities and events within the jurisdiction, including records of arrests and investigations, are public records). The initial report must be released regardless whether subsequent charges are filed. Op. Att'y Gen. 94-134.

Information that would be exempt, however, under another specific provision of section 3 (e.g., names of confidential informants or undercover officers) or that would reveal ongoing undercover or intelligence operations or the identity of the victim of a sexual offense need not be disclosed. La. Rev. Stat. Ann. 44:3(A)(4)(c), (d); State v. Campbell, 566 So. 2d 1038 (La. App. 3rd Cir. 1990) (en banc). Note: Section 9 of the Act, La. Rev. Stat. Ann. § 44:9, provides for the expungement, and in some cases destruction, of records of both misdemeanor and felony arrests if the defendant was acquitted, the charges dismissed or nol prossed, or prosecution not instituted within the applicable time limitation.

(5) Records which contain the identity of undercover police officers. La. Rev. Stat. Ann. § 44:3(A)(5).

(6) Records which concern status offenders as defined in the Code of Juvenile Procedure. La. Rev. Stat. Ann. § 44:3(A)(6).

(7) Records collected and maintained by the Louisiana Bureau of Criminal Identification and Information. This exception does not apply to the central registry of sex offenders maintained by the bureau. La. Rev. Stat. Ann. § 44:3(A)(7).

(8) Police body-camera audio or video that is found by the custodian of the records “to violate an individual’s reasonable expectation of privacy.”  La. Rev. Stat. Ann. § 44:3(A)(8).

c. Tax returns, except for the name and address of a person who obtains an occupational license, the information on the face of the license, and the name of the person to whom the license is issued. La. Rev. Stat. Ann. § 44:4(l); Op. Att'y. Gen. 00-165 (tax returns of public employees or information taken from them are exempt). See also Op. Att'y Gen. 96-532 (Dept. of Revenue and Taxation is not prohibited from disclosing names of individuals who have not filed tax returns when requested).

d. Records of persons receiving entitlement payments (old age, blind or dependent children payments). La. Rev. Stat. Ann. § 44:4(2).

e. Records which pertain to a private person or firm which are in their nature confidential "in the custody or control of any officer . . . whose duties . . . are to investigate, examine, manage . . . or liquidate the business of any private person. . . ." La. Rev. Stat. Ann. § 44:4(3). Several opinions of the Attorney General conclude that this exemption includes proprietary and financial information of private persons and companies if confidential in nature, Op. Att'y Gen. 00-36; Op. Att'y Gen. 92-698, Op. Att'y Gen. 89-550, Op. Att'y Gen. 89-598, Op. Att'y Gen. 83-493, and 82-860; and of nonprofit organizations, Op. Att'y Gen. 87-320. Information which would tend to disclose the income of a private individual is also exempt from disclosure. Op. Att'y Gen. 87-355. Thus, the identities of tenants deemed eligible for low income housing also is exempt. Op. Atty'y Gen. 97-77. This exemption is said to be grounded in the Louisiana constitutional protection against invasions of privacy. La. Const. Article 1, Section 5. But see Op. Att'y Gen. 98-26 (names and salaries of public employees are not exempt, either under act or constitutional right of privacy), Op. Att'y Gen. 92-367, Op. Att'y Gen. 92-715, Op. Att'y Gen. 85-724, and Op. Att'y Gen. 81-353.

f. Various records of financial institutions maintained by the Office of Financial Institutions. La. Rev. Stat. Ann. § 44:4(4).

g. Daily reports and endorsements filed by insurers with the Louisiana Casualty and Surety Rating Commission. La. Rev. Stat. Ann. § 44:4(5).

h. Records in the custody of the Supervisor of Public Funds and working papers of the internal auditor of a municipality, until the audit is complete. La. Rev. Stat. Ann. § 44:4(6).

i. Records in the custody of the Louisiana State Board of Medical Examiners which concern a person's fitness to practice medicine or midwifery. La. Rev. Stat. Ann. § 44:4(7).

j. Records in the custody of the Department of Conservation which concern proven or estimated reserves of petroleum, natural gas or other minerals. This exemption applies only when the record has "been declared, presented or received as confidential at the request of the lawful owner thereof. . . ." La. Rev. Stat. Ann. § 44:4(8).

k. Records in the custody of the Louisiana State Board of Nursing, Louisiana State Board of Dentistry, Louisiana Board of Veterinary Medicine, Louisiana State Board of Social Work Examiners, Louisiana State Board of Examiners of Psychologists, Louisiana State Board of Practical Nurse Examiners, Louisiana Board of Pharmacy, Louisiana State Board of Optometry Examiners, Louisiana Licensed Professional Counselors Board of Examiners, State Licensing Board for Contractors, and Board of Examiners of Certified Shorthand Reporters relating to a person's fitness to hold a license to practice nursing, dentistry, veterinary medicine, social work, psychology, practical nursing, pharmacy, optometry, counseling, contracting, or court reporting, excluding any action taken by those Boards, and any legal grounds upon which such action is based, relative to an individual's fitness to receive or to continue to hold a license. La. Rev. Stat. Ann. § 4:4(9), (11), (12) (26), (29), (32), (35), (39), (46), (51), and (53).

l. Records in the control or custody of the Governor and which are used in the discharge of his duties. La. Rev. Stat. Ann. § 44:5.

m. Hospital records of individual patients and the records and proceedings of hospital committees. La. Rev. Stat. Ann. § 44:7. Op. Att'y Gen. 92-600. Generally, however, documentation submitted by a health care provider is subject to disclosure. Op. Att'y Gen. 92-367.

n. Records received by the Department of Natural Resources where nondisclosure is required by federal law. La. Rev. Stat. Ann. § 44:4(10).

o. Computer programs or financial or proprietary information used with any automated broker interface system or an automated manifest system conducted by any port commission. La. Rev. Stat. Ann. § 44:4(13).

p. Records in the custody of the Department of Health and Human Resources containing trade secrets submitted by the manufacturer of a product. La. Rev. Stat. Ann. § 44:4(14).

q. Home address and telephone numbers of public employees when the employee requests that they be confidential (La. Rev. Stat. Ann. § 44:11; Op. Att'y Gen. 00-165 and 95-243), and medical and insurance records of public employees (La. Rev. Stat. Ann. § 44:12). Employee performance evaluations are exempt. Op. Att'y Gen. 85-724; Trahan v. Larrivee, 365 So. 2d 294 (La. App. 3rd Cir. 1978), writ denied, 366 So. 2d 564 (La. 1979). But see Op. Att'y Gen. 98-26, Op. Att'y Gen. 92-367, Op. Att'y Gen. 92-715, Op. Att'y Gen. 81-353, and Op. Att'y Gen. 85-724 (names and salaries of public employees are not exempt, either under act or constitutional right of privacy). Information concerning marital status and organizational memberships of public appointees is exempt, but education and employment histories are not exempt. Op. Att'y Gen. 83-648. Transcripts, medical records, letters of recommendation and other "personally identifiable documents" of personnel are exempt. Op. Att'y Gen. 79-242.

r. Personally identifiable student records are exempt (e.g., grades, test scores, birth dates), but statistics and reports that do not identify an individual are public records. Op. Att'y Gen. 76-186; LaPlante v. Steward, 470 So. 2d 1018 (La. App. 1st Cir.), writ denied, 476 So. 2d 352 (La. 1985). But see La. Rev. Stat. Ann. § 17:391.4(E) (pupil assessment test scores of individual students, classes, schools and school systems are exempt from the Public Records Act but may be released by school boards if they do not identify individual students, classes, and teachers).

s. Working papers and interim reports developed in conjunction with a strategic plan prepared by private consulting firms and possessed by the Board of Commissioners of the Port of New Orleans that contain sensitive commercial data, the disclosure of which would diminish the competitive advantage of the Port of New Orleans, are not public records. Information that is confidential and proprietary in nature may be excised from the public records. Op. Att'y Gen. 86-669.

t. Upon the request of the owner, certain electronic logs and other electronic surveys produced from wells drilled in search of oil and gas which are filed with the assistant secretary of the Office of Conservation. La. Rev. Stat. Ann. § 44.1(B)

u. All documents filed with, and evidence and proceedings before the judicial commission. La. Rev. Stat. Ann. § 44:10.

v. Records of any library indicating which of its materials have been loaned to or used by an identifiable individual or group of individuals and records of any library which are maintained for purposes of registration or for determining eligibility for the use of library services. La. Rev. Stat. Ann. § 44:13. Op. Att'y Gen. 98-496 (records concerning complaints about Internet usage, specifically about patrons accessing pornographic or sexually explicit material, are public records but the identity of the user of the material must be redacted from the record before release).

w. Identifiable information on their insureds provided by law to the state Department of Health and Hospitals by those issuing health insurance. La. Rev. Stat. Ann. § 44:14.

x. Claim files relating to pending claims in the custody of the Office of Risk Management, Division of Administration, or similar records of a municipality or parish. La. Rev. Stat. Ann. § 44:4(15). See Op. Att'y Gen. 91-98, which expresses the opinion that section 44:4(15) must be construed in pari materia with a wide range of other laws, including the work product privilege and the purported privacy rights of health care providers, and suggests that closed medical malpractice claim files are subject to item-by-item review and non-disclosure.

y. Records of boards and institutions of higher learning involving trade secrets and commercial or financial information obtained from a person and "pertaining to research or to the commercialization of technology"; proposals and commercial or technical research by faculty "of a patentable or licensable nature"; private document collections designated by their donors as having restricted access for a specific period of time. La. Rev. Stat. Ann. § 44:4(16). One Attorney General's opinion expresses the surprising conclusion that "any information which pertains to research is deemed to be 'commercial' under section 4(16)(a) and thus is exempt until published." Op. Att'y Gen. 92-94 would extend a blanket exemption to any information obtained by a public university research center collecting "demographic information" and doing "political polling."

z. Records required of hospitals by the Department of Health and Hospitals as a condition of licensure. La. Rev. Stat. Ann. § 44:4(17).

aa. Records of Board of Chiropractic Examiners concerning fitness of licensees. La. Rev. Stat. Ann. § 44:4(18).

bb. Records of Office of Public Health gathered or prepared in connection with studies and investigations to determine any "cause or condition of health." Statistics relating to morbidity and mortality may be released if they do not identify individual cases and sources of information or religious affiliations. La. Rev. Stat. Ann. § 44:4(19).

cc. Records of Department of Wildlife and Fisheries on "rare, threatened, or endangered species or unique natural communities" and on shipments of alligators or alligator skins La. Rev. Stat. Ann. § 44:4(20), (45).

dd. Questionnaire information concerning the timber industry received by the Department of Agriculture and Forestry. Compiled results, however, are public records. La. Rev. Stat. Ann. § 44:4(21).

ee. Medical and vital records relating to maternal and infant mortality studies of the Commission on Perinatal Care and Prevention of Infant Mortality of the Department of Health and Hospitals. La. Rev. Stat. Ann. § 44:4(22); § 40:2018(I).

ff. Name and address of a law enforcement officer in the custody of the registrar of voters or the commissioner of elections, if the law enforcement officer's employer agency certifies that the officer is engaging in "hazardous activities" that make it necessary for his or her name and address to be kept confidential. La. Rev. Stat. Ann. § 44:4(23).

gg. Motor vehicle accident reports required to be submitted to the State by the driver of vehicles involved in an accident involving death, injury or more than $100 property damage. Reports are available, however, to parties to accident, insurers, attorneys, and "news-gathering organizations." La. Rev. Stat. Ann. § 44:4(24); 32:398(H). This exception was challenged on First Amendment and equal protection grounds, but was held to be constitutional. DeSalvo v. Louisiana, 624 So. 2d 897 (La. 1993), cert. denied, 510 U.S. 1117 (1994).

hh. Records of the retired members of the state and municipal employees retirement systems except for the amount of the retired member's retirement allowance, final average compensation, years of creditable service, and the names of the agencies with which he was employed and dates employed. La. Rev. Stat. Ann. § 44:16. This information may be requested by a member of the legislature or an individual reporting to the public retirement system or group receiving benefits from the retirement system. La. Rev. Stat. Ann. 44:16(B); Op. Att'y Gen. 95-243A.

ii. Information and records pertaining to the immunization status of persons against childhood diseases, unless the information is disclosed only for the purpose of administering or receiving vaccinations, and the information is released to one of the following individuals: (1) state health care provider; (2) private health care provider; (3) representative of a patient; or (4) a patient who is not a minor. La. Rev. Stat. Ann. § 44:17(B)-(C).

jj. Certificates of official driving records in the custody and control of the Department of Public Safety and Corrections, office of motor vehicles, except as provided in R.S. 15:521. La. Rev. Stat. Ann. § 44:3(G).

kk. Records of the Louisiana State Child Death Review Panel. La. Rev. Stat. Ann. § 44:4(25).

ll. Testing instruments used by the state Department of Education or the State Board of Elementary and Secondary Education. La. Rev. Stat. Ann. § 44:4(27).

mm. The name of any person applying for or receiving funds from the Crime Victims Reparations Fund. “In lieu of the person's name, the person's file number shall be used." La. Rev. Stat. Ann. § 44:4(28).

nn. Proprietary information provided to a communications district by a service supplier. La. Rev. Stat. Ann. § 44:4(31), 33:9106.

oo. Names, addresses, and telephone numbers of students in public elementary or secondary schools. La. Rev. Stat. Ann. § 44:4(33).

pp. Social security numbers of teachers and other school employees. La. Rev. Stat. Ann. § 44:4(34).

qq. Terms and conditions of rebates concerning prescription drug pricing, in the custody of the Louisiana Department of Health. La. Rev. Stat. Ann. § 44:4(36).

rr. Protected health information as defined in the Louisiana Health Emergency Powers Act. La. Rev. Stat. Ann. § 44:4(37), 29:762.

ss. Records in the custody of the Office of Conservation pertaining to pipeline security procedures. La. Rev. Stat. Ann. § 44:4(38).

tt. Information pertaining to security systems contained in building permit files. La. Rev. Stat. Ann. § 44:4(40).

uu. Card numbers, expiration dates, and PIN numbers for credit cards issued to public bodies. La. Rev. Stat. Ann. § 44:4(41).

vv. Questions and answers on the notarial exam. La. Rev. Stat. Ann. § 44:4(42).

ww. Information on applications by persons under 18 years of age for membership on the Louisiana Legislative Youth Advisory Council. La. Rev. Stat. Ann. § 44:4(43).

xx. Louisiana Cemetery Board records pertaining to investigations. La. Rev. Stat. Ann. § 44:4(44).

yy. Court reporter’s records. La. Rev. Stat. Ann. § 44:4(47).

zz. Tax information in the possession of the Board of Tax Appeals. La. Rev. Stat. Ann. § 44:4(48).

aaa. Jury questionnaires. La. Rev. Stat. Ann. § 44:4(49).

bbb. Security surveillance video of the state capitol area and grounds. La. Rev. Stat. Ann. § 44:4(50).

ccc. Questions and answers on contractors licensing exams. La. Rev. Stat. Ann. § 44:4(52).

ddd. Personal information of peace officers in the custody of the Council on Peace Officer Standards and Training or the Louisiana Commission on Law Enforcement and Administration of Criminal Justice. La. Rev. Stat. Ann. § 44:4(54).

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B. Other statutory exclusions

Records are "public records" except as otherwise provided in the Public Records Act "or as otherwise specifically provided by law." La. Rev. Stat. Ann. § 44:1(A)(2). Such exclusions include:

  1. Marketing plan for hospital service district commission: Any marketing strategy and strategic plan of a hospital service district commission and the facility owned or operated by the district is exempt from Public Records Act. See, e.g., La. Rev. Stat. Ann. § 46:1073(C). Op. Att'y Gen. 95-316.
  2. Records of University Foundations: Public access to records of university foundations is limited to “books and records . . . that . . . directly pertain to the receipt, investment, or expenditure of public funds.” See La. Rev. Stat. Ann. § 17:3390.
  3. Gaming: Public access to records of Louisiana Economic Development and Gaming Corporation is limited. See La. Rev. Stat. Ann. § 27:237.
  4. Obligation Bonds: The records of ownership, registration, transfer, and exchange of state general obligation bonds are exempt from Public Records Act. La. Rev. Stat. Ann. § 39:1435(C).
  5. Proprietary School Commission: Documents containing information provided with an application for a proprietary school license to the Louisiana Proprietary School Commission are not open to public inspection. La. Rev. Stat. Ann. § 17:3141.4.
  6. Pardon and Parole Records: The pre-sentence investigation report, the pre-parole report, the clemency report, the information and data gathered by the staffs of the boards of pardon and parole, the prison records, and any other information obtained by the boards or the Department of Safety and Corrections, Office of Corrections Services, in the discharge of their official duties shall be confidential and shall not be subject to public inspection, except for certain limited information which is public if an inmate applies for pardon or parole. La. Rev. Stat. Ann. § 15:574.12
  7. Securities Issued by a Public Entity: The records of ownership, registration, transfer and exchange of securities issued by a public entity and of persons to whom payment with respect to such securities are made are exempt from the Public Records Act. La. Rev. Stat. Ann. § 39:1435
  8. Contractors with Department of Highways: Information furnished by proposed contractors with the Department of Highways that indicates the financial and other capacities of the contractor to perform the proposed work is exempt from the Public Records Act. La. Rev. Stat. Ann. § 48:255.1
  9. Sex Offenders: The dissemination of information relating to convicted sex offenders may not be released except according to regulations established by the Parole Board pursuant to La. Rev. Stat. Ann. § 15:547(C).
  10. Internal Affairs Investigations: In connection with an investigation of a law enforcement officer, a law enforcement agency is prohibited from releasing an officer's home address, photograph, or other information determined to be confidential by the law enforcement agency. La. Rev. Stat. Ann. § 40:2532; Op. Att'y Gen. 93-333; Beckett v. Serpas, 112 So.3d 348 (La.App. 4th Cir. 2013). Internal Affairs investigations themselves are not exempt. City of Baton Rouge v. Capital City Press, LLC, 4 So.3d 807 (La.App. 1st Cir. 2008).
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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Constitutional Invasion of Privacy: Certain records may be exempt from the Public Records Act because the nature of the information is so personal that disclosure of the records would constitute an invasion of privacy in violation of article I, section 5 of the Louisiana Constitution of 1974. The leading case supporting this analysis is Trahan v. Larrivee, 365 So. 2d 294 (3rd Cir. 1979) (Performance evaluation reports of public employees are exempt. The confidentiality of these evaluations serves the public interest because it promotes candidness, objectivity and accuracy. Thus, the public's "right to know" embodied in article XII, section 3 of the Louisiana Constitution of 1974 does not outweigh the privacy interests involved.). Courts generally were reluctant to identify privacy rights absent clear statutory grounding, particularly after the Louisiana Supreme Court decision in Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So. 2d 562 (La. 1997) (finding no reasonable expectation of privacy for those applying for public employment).

Historically, opinions using this analysis conclude either that there is no expectation of privacy in the requested information, or that the public's right to know outweighs the privacy interest involved. See Hilbun v. State Division of Administration, 745 So. 2d 1189 (La. App. 1st Cir. 1999) (public employee has no expectation of privacy in interviews given in a state Division of Administration investigative report); Times-Picayune v. New Orleans Aviation Board, 742 So. 2d 979 (La. App. 5th Cir.), writ denied, 751 So. 2d 257 (La. 1999) (forms submitted in application for Disadvantaged Business Enterprise status are not exempt from disclosure); Local 100 v. Rose, 675 So. 2d 11 (La. App. 1st Cir. 1996), writ denied 679 So. 2d 441 (La. 1996) (public employee has no expectation of privacy in name, or home or work addresses, although he or she may request that his or her home address and telephone number remain confidential, pursuant to La. Rev. Stat. Ann. § 44:11(A)(2)-(3)); Treadway v. Jones, 583 So. 2d 119 (La. App. 4th Cir. 1991) (court must determine if assertion of privacy interests is "objectively reasonable" in light of public activity involved; corporations have no predictable privacy interests); Hatfield v. Bush (II), 572 So. 2d 588 (La. App. 1st Cir. 1990), writ denied, 576 So. 2d 49 (1991) (district attorney's employees have no reasonable expectation of privacy with respect to their names, dates of absence, and reasons for absence, with possible exception of certain types of sick leave and reasons therefor); Gannett River States Pub. Co. v. Hussey, 557 So. 2d 1154 (La. App. 2d Cir. 1990), writ denied, 561 So. 2d 103 (La. 1990) (applicants for fire chief of Shreveport had no objectively reasonable expectation of privacy in applications); Plaquemines Parish Commission Council v. Delta Development Company Inc., 472 So. 2d 560 (La. 1985) (public officials have a diminished right to privacy by virtue of their undertaking public office, especially concerning information that had to do with their conduct in the administration of their office and with revenues derived therefrom. But even the privacy concerns of private individuals may be overridden by the legitimate needs of the public to know. A court must attempt to balance the competing interests of the right of the public to access to information and the right of individuals to privacy. Thus, information relating to money received by public officials and their immediate families from mineral interests on public lands is ordered to be disclosed.); Op. Att'y Gen. 95-294 (information contained in an outstanding warrant is public record, and is not outweighed by privacy interests); Op. Att'y Gen. 94-87 (names and addresses of applicants for physical therapist assistant licensure who sat for testing have no expectation of privacy in their names or addresses); Op. Att'y Gen. 89-560 (disclosure of Department of Environmental Quality publication's mailing list of subscribers does not violate privacy rights of subscribers).

However more recently, several Court of Appeal decisions and opinions of the Attorney General have used this privacy analysis to justify denying access to records: 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); 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, Department of Environmental Quality, 761 So. 2d 713 (La. App. 1st Cir.), writ denied, 768 So. 2d 1284 (La. 2000) (privacy interests in employee grievance records outweighs public interest in disclosure); Ellerbe v. Andrews, 623 So. 2d 41 (La. App. 1st Cir. 1993) (privacy interests prevent disclosure in a civil case of a party's "rap sheet" from the State's centralized computer base); Op. Att'y Gen. 98-21 (records of incomplete investigation of sexual harassment allegation); Op. Att'y Gen. 93-445A (information regarding employees' tax exemptions, taxable wages, federal tax, FICA wages, Medicare wages, Medicare tax, state tax, and deferred compensation protected by privacy interests); Op. Att'y Gen. 00-165 (same); Op. Att'y Gen. 87-355 (information tending to disclose the income of a private individual is exempt); Op. Att'y Gen. 76-186 (personally identifiable student records are exempt); Rasier v. City of New Orleans, 222 So.3d 806 (La.App. 4th Cir. 2017) (Uber driver had reasonable expectation of privacy in his personal information that he transmitted to City, outweighing public’s right to know).

Additionally, the Louisiana Supreme Court 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).

Note: In a dubious related ruling which was not reviewed by the Louisiana Supreme Court, the Hatfield court required the plaintiff reporter to join each of the District Attorney's 82 employees as an indispensable party to the reporter's action for mandamus to secure access under the Act to the employees' leave records. See Hatfield v. Bush (I), 540 So. 2d 1178 (La. App. 1st Cir. 1989). On remand, plaintiff joined only five employees and his relief was limited to the records of the five. On rehearing, the Court of Appeal concluded that its indispensable party ruling in Hatfield I was res judicata because it had not been appealed. See Hatfield (II), 572 So. 2d at 594-95.

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D. Are segregable portions of records containing exempt material available?

Yes. La. Rev. Stat. Ann. § 44:32(B); 33(A)(l); Association for Rights of Citizens of St. Bernard, 557 So. 2d 714, 716-17 (La. App. 4th Cir. 1990).

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III. Record categories - open or closed

A. Autopsy and coroners reports

La. Rev. Stat. Ann. § 13:5713 specifically identifies autopsy reports as public records, and further provides that "[t]he public records fee for . . . an autopsy report shall be the same as that charged by the registrar of vital records for the state for a death certificate." See also Everett v. Southern Transplant Service Inc., 709 So. 2d 764 (La. 1998) (reversing a Fourth Circuit decision holding that coroners' reports were not public records under the previous statute). Autopsy photos, video and visual images, however, are not public records. La. Rev. Stat. Ann. § 44:19(B). The Attorney General previously rendered an opinion that the autopsy record of a child is not public record if the child is under seven, or the child's death is connected with a criminal investigation. Op. Att'y Gen. 94-19. But the First Circuit has since ruled that autopsy reports of children under seven years are not exempt from disclosure unless the child died an "unexpected death" as defined by La. Rev. Stat. Ann. § 40:2019(B)(3): "a death which is a result of undiagnosed disease, or trauma in which the surrounding circumstances are suspicious, obscure, or otherwise unexplained," or SIDS. Bozeman v. Mack, 744 So. 2d 34 (La. App. 1st Cir. 1998) (holding that the autopsy report of a minor killed in a car accident was a public record because the circumstances of her death were not suspicious, obscure, or otherwise unexplained).

Coroners reports are public record even in cases involving commission of a crime. State v. Arnold, 466 So. 2d 520 (La. App. 3rd Cir. 1985), writ denied, 470 So. 2d 124 (La. 1985); State v. Williams, 438 So. 2d 1212 (La. App. 3rd Cir. 1983), writ denied, 443 So. 2d 590 (La. 1983); Op. Att'y Gen. 89-604. The Louisiana Supreme Court has reversed a Fourth Circuit decision which had held that coroner's reports were not public records. Everett v. Southern Transplant Service Inc., 709 So. 2d 764 (La. 1998). The records do not become public, however, until after the notification of the next of kin and upon final autopsy and investigation. See La. Rev. Stat. Ann. § 33:1563(K)(2)-(3); see also Op. Att'y Gen. 94-271. The “criminal investigation” exemption may apply.  Op. Att’y Gen. 17-43.

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

No specific provision, but these records should be treated as a public record and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.”  The Act contains numerous exemptions for these types of records, typically phrased as exempting “records . . . concerning the fitness of any person to receive, or continue to hold, a license to practice”, e.g., medicine, nursing, dentistry, veterinary medicine, etc.  La. Rev. Stat. Ann § 44:4, subsections 7, 9, 11 and 12.

Typically, the “final determination” of fitness to hold licenses to practice these occupations is a public record.

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C. Bank records

Bank examination records are exempt. La. Rev. Stat. Ann. § 44:4(4). See also Op. Att'y Gen. Jan. 31, 1974. So are bank shareholder records. Op. Att'y Gen. Nov. 5, 1965.

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D. Budgets

Budgets are covered by the Act.  Carter v. Fench, 322 So.2d 305 (La.App. 1st Cir. 1975).

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E. Business records, financial data, trade secrets

Business or financial records of a quasi-public corporation receiving public funds are public records from the time the public funds are received, Lewis v. Spurney, 456 So. 2d 206 (La. App. 4th Cir.), writ denied, 457 So. 2d 1183 (La. 1984), writ denied, 458 So. 2d 488 (La. 1984). But proprietary or trade secret information provided to public bodies by the developer, owner, or manufacturer of a code, pattern, formula, design, device, method or process in order to obtain approval for sale or use in the state is specifically exempted from the Public Records Act. La. Rev. Stat. Ann. § 44:3.2. Business records and financial records provided to state agencies as a consequence of regulatory laws may be protected by the constitutional right of privacy or pursuant to section 4(3). La. Rev. Stat. Ann. § 44:4(3). See Op. Att'y Gen. 95-254A (it is an open question best left to courts whether constitutional right of privacy applies to third-party financial information notwithstanding Public Records Act). Several opinions of the Attorney General conclude that this exemption extends to proprietary and financial information of nonprofit organizations, private persons, and companies if the information is confidential in nature. Op. Att'y Gen. 00-36 (confidential business information provided to La. State Dept. of Agriculture and Forestry by regulated entities); Op. Att'y Gen. 94-508 (personally identifiable financial information contained within public utility records should not be released to protect privacy of individual customers); Op. Att'y Gen. 92-698; Op. Att'y Gen. 89-550; Op. Att'y Gen. 89-598; Op. Att'y Gen. 87-320; Op. Att'y Gen. 83-493; and Op. Att'y Gen. 82-860. But see Times-Picayune Publishing Corp. v. New Orleans Aviation Board, 742 So. 2d 979 (La. App. 5th Cir.), writ denied, 751 So. 2d 257 (La. 1999) (applicants for Disadvantaged Business Enterprise eligibility have no expectation of privacy regarding certain general financial information submitted in applications but more specific information marked "confidential" is except from disclosure).

There is also a narrow statutory exclusion for financial or trade secrets relating to automated broker interface systems or automated manifest systems conducted by deep water or shallow draft port commissions of the State. La. Rev. Stat. Ann. § 44:4(13)(b); Op. Att'y Gen. 95-254(A).

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F. Contracts, proposals and bids

Open except to the extent that they contain otherwise non-public information. See Op. Att'y Gen. 95-7 (management contract entered into by and between hospital and a hospital management firm is subject to Public Records Act, except for portions which would reveal the marketing strategy or strategic plan of the hospital, as prohibited by La. Rev. Stat. Ann. § 46:1073); See also Ops. Att'y Gen. 92-698, 89-550, 89-598 and 83-493 (all indicating that proprietary and financial information of private persons and companies is exempt from disclosure). Note, however, that the Office of the Attorney General stated in 1995 that it is still an open question best left to courts whether constitutional right of privacy applies to third-party financial information notwithstanding Public Records Act. Op. Att'y Gen. 95-254A.

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G. Collective bargaining records

Statute does not specify.

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H. Economic development records

The Act contains a limited exemption for certain “records in the custody of the Department of Economic Development pertaining to an active negotiation with a person for the purpose of retaining, expanding, or attracting economic or business development in the state” if the person requests confidentiality and details the reasons, and the secretary of the Department of Economic Development agrees. The exemption ends “immediately upon the conclusion of the negotiation”; the exemption can last no longer than 24 months. The exemption ceases to exist “beginning with any negotiations that begin on or after July 1, 2012.” La. Rev. Stat. Ann. § 44:22.

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I. Election Records

Voter registration records are subject to the Act, except for “the name and address of a law enforcement officer in the custody of the registrar of voters or the secretary of state, if certified by the law enforcement agency employing the officer that the officer is engaging in hazardous activities to the extent that it is necessary for his name and address to be kept confidential.” La. Rev. Stat. Ann. § 44:4(23).

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J. Emergency Medical Services records

911 tapes “qualify as a confidential communication” and are exempt from disclosure.”  Hill v. E. Baton Rouge Par. Dep't of Emergency Med. Servs., 925 So.2d 17, 21 (La.App. 1st Cir. 2005).

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K. Gun permits

Information in an application for a concealed handgun permit is exempt from disclosure.  La. Rev. Stat. Ann. § 40:1379.1.1.

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L. Homeland security and anti-terrorism measures

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).

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M. Hospital reports

Exempt to the extent they contain personally identifiable information or reflect the records or proceedings of hospital committees. La. Rev. Stat. Ann. § 44:7. Administrative and financial records are not exempt. Op. Att'y Gen. 86-515-A. George v. Christus Health Southwestern Louisiana, 203 So.3d 541 (La.App. 3d Cir. 2016) (remanding to district court for in camera review of documents to determine if exemption applied).

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N. Personnel records

1. Salary

Information concerning gross income is subject to discovery, as is information regarding expenses incurred by an employee and amounts reimbursed for those expenses. Op. Att'y Gen. 93-445(A). The Attorney General has issued an opinion, however, indicating that constitutional privacy interests prevent disclosure of information regarding tax exemptions, taxable wages, federal tax, FICA wages, FICA tax, Medicare wages, Medicare tax, state tax, and deferred compensation. Id. The First Circuit held that employees had an expectation of privacy in their payroll information that detailed hourly wages, hours worked, deductions and net paycheck amount. Angelo Iafrat Constr., L.L.C. v. State, 879 So. 2d 250 (La. App. 1st Cir. 2004); Op. Att'y Gen. 01-0226 (names and gross salaries of municipal employees are generally subject to release as public records).

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2. Disciplinary records

Employee performance evaluations are exempt. Op. Att'y Gen. 85-724; Trahan v. Larrivee, 365 So. 2d 294 (La. App. 3rd Cir. 1978) (citing constitutional privacy right), writ denied, 366 So. 2d 564 (La. 1979). Disciplinary hearing records involving employee misconduct, however, do not give rise to a reasonable expectation of privacy. Amoco Production Co. v. Landry, 426 So. 2d 220 (La. App. 4th Cir. 1982), writ denied, 433 So. 2d 164 (La. 1983); Op. Att'y Gen. 99-382 (school board member's access to employee's file to review disciplinary action against him). Nor do interviews given in the context of an investigation by the state Division of Administration. Hilbun v. State Division of Administration, 745 So. 2d 1189 (La. App. 1st Cir. 1999).

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3. Applications

The Supreme Court has ruled that applicants for public employment have no objectively reasonable expectation of privacy in their applications. Capital City Press v. East Baton Rouge Parish Metropolitan Council, 696 So. 2d 562 (La. 1997). See also Gannett River States Publishing v. Hussey, 557 So. 2d 1154 (La. App. 2d Cir.), writ denied, 561 So. 2d 103 (La. 1990) (although applicants for position of Chief of City Fire Department have an expectation of privacy in their names, the public's "right to know" outweighs that expectation and requires disclosure of the applications). However, disclosure was required only of the names of the three candidates for university president that were interviewed, not the 100 people who replied to the advertisement or the 35 who survived the initial review,  Capital City Press, LLC v. LSU Board of Supervisors, 168 So.3d 727 (La.App. 1st Cir. 2014).

Applicants for Disadvantaged Business Enterprise status have no reasonable expectation of privacy for the forms filed pursuant to their application, but supplemental answers and material attached on separate sheets marked "Confidential" and attached tax returns are exempt and should be redacted prior to disclosure. Times-Picayune Publishing Corp. v. New Orleans Aviation Board, 745 So. 2d 1189 (La. App. 1st Cir.), writ denied, 751 So. 2d 257 (La. 1999). Education and employment history information are a matter of public record, but information concerning marital status and organizational memberships are exempt. Op. Att'y Gen. 83-648. Transcripts, medical records, and letters of recommendation are exempt. Op. Att'y Gen. 79-242.

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4. Personally identifying information

Such records should be treated as a public record and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.” The Act contains numerous exemptions for these types of records, such as for the home addresses and telephone numbers of public employees and their bank account information, social security numbers of public employees, medical records of current or former public employees, etc. La. Rev. Stat. Ann. § 44:4(11)(A), (11)(C), (12) and (15).

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5. Expense reports

No specific provision, but under the Act, expense reports should be treated as a public record and should be produced to a requester absent an applicable exemption.

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6. Other

Any Social Security numbers, direct deposit information, medical and insurance related documentation contained in personnel records are exempt. La. Rev. Stat. Ann. § 44:11.

Employee leave records, with possible exception of certain types of sick leave and reasons therefor, are public and not protected by privacy right. Hatfield v. Bush (II), 572 So. 2d 588 (La. App. 1st Cir. 1990), writ denied, 576 So. 2d 49 (La. 1991). There is also no expectation of privacy in an employees' identity, home address or work address. Op. Att'y Gen. 98-26; Local 100 v. Rose, 675 So. 2d 1153 (La. App. 1st Cir. 1996) (note, however, that an employee may specifically request that his or her address remain private. La. Rev. Stat. Ann. § 44:11). Business telephone records reflecting calls made by public employees are public records and disclosure does not violate employees' privacy rights. Op. Att'y Gen. 90-159. Per diem payment and travel expense records are public. Op. Att'y Gen. 89-471; Op. Att'y Gen. 91-295. The Attorney General has expressed the opinion that "personally identifiable" personnel records are public records "only if the information is deemed relevant to the functioning of the public body." Op. Att'y Gen. 90-364 and 79-242. It is unclear which records this elastic standard would protect, but Op. Att'y Gen. 79-242 suggests that a school teacher's employment application, transcript of grades, letters of recommendation, performance evaluation, medical records, and complaints about the teacher's conduct would be protected. See Op. Att'y Gen. 99-382 (School Board members can access an employee's personnel file to see if any disciplinary action has been taken against an employee, but cannot access school employee records relative to evaluations, observations, formal complaints, and grievances). Timesheets are a matter of public record. Op. Att'y Gen. 01-117.

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O. Police records

1. Accident reports

Available to parties to accidents, insurers, attorneys, and "news-gathering organizations." La. Rev. Stat. Ann. § 44:4(24); § 32:398(H), (K).

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2. Police blotter

Every law enforcement officer making an arrest must promptly book the individual arrested by entering certain specified information into a book kept for that purpose. La. Code Crim. P. Art. 228. The book and booking information summaries shall always be open for public inspection. Id.; La. Rev. Stat. Ann. § 44:3(A)(4); Op. Att'y Gen. 78-1159. The information contained in an outstanding warrant is public record, and is not outweighed by privacy interests. Op. Att'y Gen. 95-294. Privacy interests do, however, prevent disclosure in a civil case of a party's "rap sheets" from the State's centralized computer-base. Ellerbe v. Andrews, 623 So. 2d 41 (La. App. 1st Cir. 1993).

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3. 911 tapes

One Court has held that 911 tapes “qualify as a confidential communication” and are exempt from disclosure.”  Hill v. E. Baton Rouge Par. Dep't of Emergency Med. Servs., 925 So.2d 17, 21 (La.App. 1st Cir. 2005).

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4. Investigatory records

Records of active investigations are exempt, except for the initial police report. La. Rev. Stat. Ann. § 44:3(A)(l), (4). In addition, the home address and photograph of a law enforcement officer under investigation, as well as any other information deemed confidential by the law enforcement agency, may not be disclosed. La. Rev. Stat. Ann. § 40:2532; Op. Att'y Gen. 93-323.

Records of closed investigations are public records only after pending or reasonably anticipated litigation is finally adjudicated or settled. La. Rev. Stat. Ann. § 44:3(A)(l). In re Matter Under Investigation, 15 So.2d 972, 992 (La. 2009) (determination of whether criminal litigation is “reasonably anticipated” must be made on case-by-case basis in contradictory hearing with opportunity to present evidence and examine witnesses). Internal Affairs investigative records may be expunged upon request of the officer if the officer is exonerated or the agency finds that the complaint is unfounded or unsustained. Op Att'y Gen. 94-216.

Because there is no statute of limitations on a murder charge, the “reasonably anticipated criminal investigation” exemption applies to public records requests relating to the deaths of 43 patients at a New Orleans hospital following Hurricane Katrina, even though a grand jury refused to indict the only person – a doctor – that prosecutors sought to charge, and even though, as a practical matter, it is clear that no one ever will be charged over the deaths.  Does v. Foti, 81 So.3d 101 (La.App. 1st Cir. 2011).

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5. Arrest records

Exempt until the arrested party has been adjudged or pleads guilty. La. Rev. Stat. Ann. § 44:3. Op. Att'y Gen. 97-417 (report of deputy sheriff regarding emergency medical service performed in connection with an arrest is exempt). But booking records, police log books of arrest, and initial investigative reports are public records, except for information that would reveal ongoing undercover or intelligence operations or the identity of a sexual offense victim, or that would otherwise be exempt under another specific provision of section 3 (e.g., names of confidential informants or undercover officers). La. Rev. Stat. Ann. § 44:3; State v. Campbell, 566 So. 2d 1038 (La. App. 3rd Cir. 1990) (en banc). See also Section 9 of the Act, La. Rev. Stat. Ann. § 44:9, which provides for the expungement and, in some cases, destruction of certain arrest records.

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6. Compilations of criminal histories

Public information, if they do not pertain to a pending or reasonably anticipated criminal prosecution. See Op. Att'y Gen. 77-1370 and State v. Sanders, 357 So. 2d 1089 (La. 1978). But see Ellerbe v. Andrews, 623 So. 2d 41 (La. App. 1st Cir. 1993) (constitutional privacy interests prevent disclosure in a civil suit of a party's "rap sheet" from the State's centralized computer system).

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7. Victims

The act does not require that victims be identified in the initial investigation report. Nor does it prohibit disclosure in that report of the identity of victims except for victims of sexual crimes. La. Rev. Stat. Ann. § 44:3(A)(4)(b). Records and reports concerning all matters and proceedings before a juvenile court are confidential and docketing of juvenile cases are kept separately from the civil and criminal cases. La. Rev. Stat. Ann. § 44:4.1(B)(35); Op. Att'y Gen. 03-0026.

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8. Confessions

Exempt during pendency of criminal litigation. La. Rev. Stat. Ann. § 44:3(A)(l).

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9. Confidential informants

Exempt. La. Rev. Stat. Ann. § 44:3(A)(2). State of Louisiana v. Ramsey, 60 So.3d 36, 41 (La.App. 5th Cir. 2011) (any record that would tend to reveal the identity of confidential informant is exempt from the Act).

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10. Police techniques

Exempt. La. Rev. Stat. Ann. § 44:3(A)(3). But a general assertion that certain documents reveal investigative techniques is insufficient to justify the privilege. The law enforcement agency must produce evidence to substantiate the claim of privilege and the party seeking discovery of the records must be afforded meaningful cross-examination to allow the discovering party to contradict the assertion of the privilege. Freeman v. Guaranty Broad. Corp., 498 So. 2d 218 (La. App. 1st Cir. 1986).

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11. Mugshots

Photographs of convicted sex offenders are not available without special authorization from the Parole Board. La. Rev. Stat. Ann. § 15:546(A), 15:547(C); Op. Att'y Gen. 94-338. One opinion of the Attorney General further suggests that mugshots in general are also not available for inmates or ex-offenders without special authorization from the Department of Corrections. Op. Att'y Gen. 94-338.  However, in Orleans Parish (the City of New Orleans), mugshots are posted on-line while an arrestee is in custody.

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12. Sex offender records

No specific provision, but under the Act, sex offender records should be treated as a public record and should be produced to a requester absent an applicable exemption. Photographs of convicted sex offenders are not available without special authorization from the Parole Board. La. Rev. Stat. Ann. §  15:546(A), 15:547(C); Op. Att'y Gen. 94-338. One opinion of the Attorney General further suggests that mugshots in general are also not available for inmates or ex-offenders without special authorization from the Department of Corrections. Op. Att'y Gen. 94-338.

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13. Emergency medical services records

One Court of Appeal has held that tapes of calls to 911 requesting emergency medical assistance were exempt as being “privileged communications between a health care provider and a patient.” Hill v. East Baton Rouge Parish Dept. of Emergency, 925 So.2d 17 (La.App. 1st Cir. 2005), writ denied, 927 So.2d 311 (La. 2006).

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14. Police video (i.e., “body camera footage”)

P. Prison, parole and probation reports

Pre-parole reports, clemency reports, and the information gathered by the pardons and parole boards staffs are exempt. La. Rev. Stat. Ann. § 15:574.12(A). Records of pretrial intervention program are exempt until charges are dropped, then covered unless expunged. Op. Att'y Gen. 90-588.

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Q. Professional licensing records

Should be public records unless otherwise exempt.  See La. Rev. Stat. Ann. §§ 4:4(9), (11), (12), (26), (29), (32), (35), (39), (46), (51) and (53).

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R. Public utility records

Municipal utility billing records are public records and disclosure does not infringe customers' privacy rights. Op. Att'y Gen. 90-549. However, any personally identifiable financial information contained within those records should not be released, in order to protect the privacy interests of individual customers. Op. Att'y Gen. 94-508. Social Security numbers and private telephone numbers also are exempt from disclosure. Op. Att'y Gen. 00-314.

Records pertaining to a public water works held by a contracted private corporation which managed utility's accounting and billing are public records and must be made available. See Burkett v. UDS Management Corp., 741 So. 2d 838 (La. App. 3rd Cir.), writ denied, 748 So. 2d 1150 (La. 1999).

Documents in the possession of a regulated utility that the Louisiana Public Service Commission has access to but never had in its possession are not public records under the Act. CII Carbon v. St. Blanc, 764 So. 2d 1229 (La. App. 1st Cir. 2000).

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S. Real estate appraisals, negotiations

1. Appraisals

No specific provision, but appraisals should be treated as a public record and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.”

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2. Negotiations

No specific provision, but real estate negotiations should be treated as a public record and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.”

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3. Transactions

No specific provision, but real estate transactions should be treated as a public record and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.”

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4. Deeds, liens, foreclosures, title history

No specific provision, but real estate deeds, liens, foreclosures, title history should be treated as a public record and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.”

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5. Zoning records

No specific provision, but zoning records should be treated as a public record and should be produced to a requester absent an applicable exemption, if they otherwise fall within the definition of “public record.”

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T. School and university records

1. Athletic records

Presumptively open except to the extent the records contain personally identifiable information. Op. Att'y Gen. 76-186.

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2. Trustee records

Open. Op. Att'y Gen. 78-1158 and 87-406.

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3. Student records

Presumptively open except to the extent the records contain personally identifiable information. Op. Att'y Gen. 93-285; Op. Att'y Gen. 76-186. The names and addresses of students enrolled in public schools and universities are open. Op. Att'y Gen. 93-228; Op. Att'y Gen. 91-73. Privacy issues may be raised, however. See Op. Att'y Gen. 02-0040 (the release of student records could violate the student's right to privacy).

Videotape of students on school bus, "prepared for use by the [public] . . . school system during the course of its duty to provide transportation to its students," was a public record, despite the fact that it contained personally identifiable student information (to wit, images of the students). Students have no reasonable expectation of privacy on a school bus, particularly one equipped with a video camera, so no balancing test is needed to determine that records are subject to disclosure. State v. Mart, 697 So. 2d 1055 (La. App. 1st Cir. 1997).

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4. Other

Student loan applications are exempt. Op. Att'y Gen. Feb. 11, 1974. Forms or letters submitting nominations by State legislators for scholarships to a university are public records. Times-Picayune v. Johnson, 645 So. 2d 1174 (La. App. 4th Cir. 1994), writ denied, 650 So. 2d 260 (La. 1995); Op. Att'y Gen. 93-419.

The First Circuit has ruled that the federal Buckley Amendment, 20 U.S.C. § 1232g, does not create any privacy interest in individual students. State v. Mart, 697 So. 2d 1055 (La. App. 1st Cir. 1997).

Testing instruments used by the Department of Education or the Board of Elementary and Secondary Education, the answers to those tests, and any individual student scores on those tests are exempt from disclosure. La. Rev. Stat. Ann. § 44:4(27)(a). Those authorized by policies of the Department or the Board may access this information in the exercise of their duties and responsibilities. La. Rev. Stat. Ann. § 44:4(27)(b).The parent or guardian of any child may access that child's individual test scores. La. Rev. Stat. Ann. § 44:4(27)(b).

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U. State guard records

Should be treated the same as other public employment records.

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V. Tax records

Tax records are confidential. La. Rev. Stat. Ann. 47:1508.

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W. Vital Statistics

The state registrar is the custodian of vital statistics, but he or she may delegate his or her functions and duties to employees of the registry. La. Rev. Stat. Ann. § 40:40(A), (E). In general, records are only available for inspection by, or issuance of a copy to, the person named in the records, their immediate or surviving family, the beneficiary of an insurance policy or trust, or attorneys acting on behalf of these, as per La. Rev. Stat. Ann. § 40:41(C)(1)-(2). Marriage records, however, are not subject to subsection (C), see § 40:41(C)(3), and so presumably are public records normally disclosable, § 40:41(A).

Information may also be disclosed to other state's vital statistics agencies and federal agencies responsible for vital statistics as necessary for statistical and administrative purposes, provided arrangements are made for the retention and disposal of the records. La. Rev. Stat. Ann. § 40:41(F), (G).

Vital statistics information received from other states is to be handled in the same manner as Louisiana records under this section. La. Rev. Stat. Ann. § 40:41(G).

Military Discharge. Any discharge certificate or other evidence of honorable separation from the armed forces of the United States filed on or after July 1, 2000 is not considered a public record. La. Rev. Stat. Ann. § 44:20.

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1. Birth certificates

"Disclosure of confidential birth information from which legitimacy or illegitimacy of birth of any child can be ascertained may be made only upon order of the court in any case where that information is necessary for the determination of personal or property rights and then only for that purpose," except for sheriffs or district attorneys, who may obtain such information on written request to the state registrar. La. Rev. Stat. Ann. § 40:41(B).

Birth certificates otherwise are only available to the person named in the certificate, their immediate or surviving family, the beneficiary of an insurance policy or trust, or an attorney acting on behalf of any of these. La. Rev. Stat. Ann. § 40:41(C)(1)-(2).

However, researchers under the supervision of the State Health Officer may conduct approved research in the records, so long as rules and procedures are followed which will guarantee the confidentiality of the information in the records. La. Rev. Stat. Ann. § 40:41(D).

Access to sealed adoption records requires a court order, the issuance of which is governed by Children's Code Articles 1188-1192. La. Rev. Stat. Ann. § 40:79. Such an order may only be obtained by an adopted child, or if still a minor, his or her legal representative. La. Ch. Code art. 1188. It may only be issued on a showing of "compelling necessity" based on inheritance rights, medical necessity, the registration of a biological parent or sibling according to Chapter 15 of the Children's Code (arts. 1271-1272), or other requirement of state or federal law. La. Ch. Code art. 1189. A curator may be appointed by the court to review the record to determine whether it need be unsealed. La. Ch. Code arts. 1190-1191. The disclosed record should contain as little identifying information about the biological family as possible. La. Ch. Code art. 1192. (Note that adult children and biological parents who register with the Office of Community Service can be matched, notified, and given information necessary to contact one another without opening the records, and thus without a court order. La. Ch. Code. arts. 1271-1272).

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2. Marriage and divorce

Marriage records are not subject to subsection (C) (see § 40:41(C)(3)) and so presumably are public records normally disclosable. La. Rev. Stat. Ann. § 40:41(A).

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3. Death certificates

Up to one year following the date of death, a death certificate may be issued to a funeral director at the request of the immediate family. La. Rev. Stat. Ann. § 40:41(C)(5). Otherwise it is only available to the immediate or surviving family of the person named in the certificate, or an attorney acting on their behalf. La. Rev. Stat. Ann. § 40:41(C)(1), (2).

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4. Infectious disease and health epidemics

“All records of interviews, questionnaires, reports, statements, notes, and memoranda procured by and prepared by employees or agents of the office of public health . . . in connection with special morbidity and mortality studies and research investigations to determine any cause or condition of health, . . . are confidential and shall be used solely for statistical, scientific, and medical research purposes relating to the cause or condition of health. . . .”  La. Rev. Stat. Ann. 40:3.1(A).

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IV. Procedure for obtaining records

A. How to start

1. Who receives a 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." La. Rev. Stat. Ann. § 44:1(A)(3) (emphasis added). A person is the "custodian" of a public record if he or she has "control" over the records at issue; physical possession is not prerequisite. Times-Picayune Publishing Corp. v. Johnson, 645 So. 2d 1174 (La. App. 4th Cir. 1994), writ denied 651 So. 2d 260 (La. 1995) (Louisiana legislators who had "control" of scholarship nomination firms in the physical custody of private university are custodians of the records for purpose of Public Records Act). See also Burkett v. UDS Management Corp., 741 So. 2d 838 (La. App. 3rd Cir.), writ denied, 748 So. 2d 1150 (La. 1999) (water district public records possessed by private management company must be disclosed).

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2. Does the law cover oral requests?

Yes. Request need only be specific enough to allow custodian to identify and locate records. Op. Att'y Gen. 89-602A.

The requester need not make arrangements beforehand to inspect and copy records. "If the public record applied for is immediately available, because of its not being in active use at the time of the application, the public record shall be immediately presented to the authorized person applying for it." La. Rev. Stat. Ann. § 44:33(B)(l). See also Op. Att'y Gen. 00-241 (copies made of public records need not be returned).

The custodian of the record shall notify in writing the person making the request of the custodian's determination and the reasons for it. La. Rev. Stat. Ann. § 44:32(D).

There are no subsequent steps other than legal action.

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3. Contents of a written request

Not specified by statute.

Request need only be specific enough to allow custodian to identify and locate records. Op. Att'y Gen. 89-602A. Courts have, however, refused to impose a duty on public bodies to "create" documents not already in existence. See, e.g., Nungesser v. Brown, 667 So. 2d 1036 (La. 1996) (reversing Court of Appeal decision requiring Commissioner of Insurance to provide data requested by plaintiff, where data did not exist in the form specified by the plaintiff).

Copies of records may be furnished without charge or at a reduced charge to indigent persons of the state. Also, copies of state public records may be furnished without charge or at a reduced charge if the custodian determines that the use of such copies will be limited to a public purpose, including but not limited to use in a hearing before any governmental regulatory commission. La. Rev. Stat. Ann. § 44:32(C)(2); see also Op. Att'y Gen. 95-102 (custodian of records may use discretion to provide copies free of charge to indigent persons).

Advance payment is required only if examination is to be conducted outside of regular office hours and fees include reasonable compensation for the custodian or custodian's representative. La. Rev. Stat. Ann. § 44:32(A).

It is common for written requests to include language to the effect of, “I am willing to pay up to $____ for copies of the record I have requested.  Please notify me if the costs will exceed that amount.”

The request need not specify a quick response, but it is often useful to quote the statute's requirement that records not in use be made available "immediately." La. Rev. Stat. Ann. § 44:33(B)(1).

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B. How long to wait

1. Statutory, regulatory or court-set time limits for agency response

Within three days, exclusive of Saturdays, Sundays, and legal public holidays. La. Rev. Stat. Ann. § 44:32(D). Custodian must respond within three days even if still in the process of determining which requested records may be withheld. Association of Rights of Citizens v. St. Bernard, 557 So. 2d 714, 716-17 (La. App. 4th Cir. 1990).

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2. Informal telephone inquiry as to status

There is no provision or limitation in statute for an informal telephone inquiry as to status.

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3. Is delay recognized as a denial for appeal purposes?

Delay is recognized as a denial for appeal purposes. A requester may institute proceedings five days from the date of the request, exclusive of Saturdays, Sundays, and legal public holidays. La. Rev. Stat. Ann. § 44:35(A).

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4. Any other recourse to encourage a response

Any person having custody or control of a public record who violates the Public Records Act is subject to criminal penalties. La. Rev. Stat. Ann. § 44:37. Arbitrary failure to respond may trigger $100 per day civil penalty against custodian. La. Rev. Stat. Ann. § 44:35(E).

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C. Administrative appeal

Not available.

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1. Time limit

2. To whom is an appeal directed?

3. Fee issues

4. Contents of appeal letter

5. Waiting for a response

6. Subsequent remedies

D. Court action

1. Who may sue?

"Any person who has been denied the right to inspect or copy a record. . . ." La. Rev. Stat. Ann. § 44:35A.

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2. Priority

Public records suits "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." La. Rev. Stat. Ann. § 44:35(C).

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3. Pro se

As with any lawsuit, it is possible, but probably not advisable, to proceed pro se. Louisiana courts are unaccustomed to litigation conducted by pro se plaintiffs. The litigant's lack of familiarity with court rules and procedures may increase the risk of waiving or failing to assert properly the right of access to public records.

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4. Issues the court will address

a. Denial

Yes. La. Rev. Stat. Ann. § 44:35(A).

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b. Fees for records

Yes. La. Rev. Stat. Ann. § 44:32(C).

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c. Delays

Yes. La. Rev. Stat. Ann. § 44:35(E).

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d. Patterns for future access (declaratory judgment)

Yes. La. Rev. Stat. Ann. § 44:35(A).

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5. Pleading format

Not specified. Cases usually are brought as requests for a writ of mandamus directed to the custodian of the requested records.

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6. Time limit for filing suit

Not specified. According to one Court of Appeal decision, a plaintiff may be subject to a laches defense if he or she delays filing suit beyond the time the custodian is obligated to maintain the requested records, even if the plaintiff requested the records while they were required to be, and apparently were, maintained. Benoit v. DeVillier, 649 So. 2d 523 (La. App. 3d Cir. 1994), writ denied, 650 So. 2d 243 (La. 1995).

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7. What court

The district court for the parish [county] in which the office of the custodian is located. La. Rev. Stat. Ann. § 44:35A.

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8. Judicial remedies available

Writ of mandamus, injunctive or declaratory relief, together with attorneys' fees, costs, damages, and civil penalties, if available. La. Rev. Stat. Ann. § 44:35(A).

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9. Litigation expenses

Available. "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 attorneys' fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorneys' fees or an appropriate portion thereof." La. Rev. Stat. Ann. § 44:35(D). Louisiana courts interpreting section 35(D) have measured "prevailing" by the plaintiff-requester's success in obtaining the records sued for. See, e.g., Ferguson v. Stephens, 623 So. 2d 711 (La. App. 4th Cir. 1993) (court ordinarily should not consider custodian's good faith in determining whether to award attorneys fees); Association for Rights of Citizens v. St. Bernard, 557 So. 2d 714 (La. App. 4th Cir. 1990) (fee award mandatory if plaintiff "fully successful in obtaining all the information requested"); Treadway v. Jones, 583 So. 2d 119 (La. App. 4th Cir. 1991) (housing authority compelled to produce requested records liable for requester's attorneys' fees despite its good faith refusal based on advice of counsel); Gannett River States Pub. Co. v. Hussey, 557 So. 2d 1154, 1159-60 (La. App. 2d Cir. 1990), writ denied, 561 So. 2d 103 (La. 1990) (custodian's good faith relevant to denial of attorneys' fees but some records successfully withheld); Lewis v. Spurney, 456 So. 2d 206, 208 (La. App. 4th Cir. 1984), writ denied, 457 So. 2d 1183 and 458 So. 2d 488 (La. 1984) (same reasoning as Gannett). See also Tectrans, Inc. v. New Orleans Aviation Board, 695 F.Supp.2d 313 (E.D. La. 2010) (requestor entitled to attorneys’ fees where Defendant failed to retain requested public records for statutory three-year period). "[I]n 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 attorneys' fees to the custodian." La. Rev. Stat. Ann. § 44:35(E). In the complex Tulane legislative scholarship litigation, the Fourth Circuit denied attorneys' fees to the Times-Picayune despite generally affirming the district court's ruling on the merits of the records dispute. Times-Picayune Publishing Corp. v. Johnson, 645 So. 2d 1174 (La. App. 4th Cir. 1994), writ denied, 651 So. 2d 259 (La. 1995) (plaintiff was entitled to records at issue, but that plaintiff's request for mandamus was "premature" in absence of showing that defendants would not comply with declaratory judgment, and plaintiff was not entitled to award of attorneys' fees). The Fourth Circuit has since provided direction to avoid the problem in Johnson by instructing that a party may simply ask for a writ of mandamus independently of any declaratory judgment, and issues that need to be determined (such as whether or not the records are public, and whether or not the party opposing the writ is the proper custodian) can be settled in a contradictory mandamus hearing. See Alliance for Affordable Energy v. Frick, 695 So. 2d 1126 (La. App. 4th Cir. 1997). The amount of attorneys' fees awarded will not be disturbed absent "clear evidence of abuse of discretion." Times-Picayune Publishing Corp. v. New Orleans Aviation Board, 742 So. 2d 979 (La. App. 5th Cir.), writ denied, 751 So. 2d 257 (La. 1999).

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a. Attorney fees

Available. "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 attorneys' fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorneys' fees or an appropriate portion thereof." La. Rev. Stat. Ann. § 44:35(D).  See Brown v. Serpas, 146 So.3d 748 (La.App. 4th Cir. 2014 (awarding $17,900 in attorneys’ fees)

As a practical matter, agencies may produce records after a suit is filed but before the court rules.  This sometimes leads to a denial of attorneys’ fees, on the theory that the requestor did not prevail “in such suit.”  The Court in Louisiana Capital Assistance Center v. Dinvault, 207 So.3d 1187 (La.App. 5th Cir. 2016) rejected that reasoning and awarded the requested $2200 of fees and costs.  Similarly, the Court in Heath v. City of Alexandria, 11 So.3d 569 (La.App. 3d Cir. 2009, awarded the plaintiff $2500 in fees.

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b. Court and litigation costs

Available. "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 attorneys' fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorneys' fees or an appropriate portion thereof." La. Rev. Stat. Ann. § 44:35(D).

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10. Fines

A person convicted of violating the Public Records Act shall be fined not less than $100 nor more than $1,000 or imprisoned not less than one month nor more than six months upon first conviction and shall be fined not less than $250 nor more than $2,000 or imprisoned not less than two months nor more than six months, or both, upon subsequent convictions. La. Rev. Stat. Ann. § 44.37.

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11. Other penalties

"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 . . . . In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required . . . it may award civil penalties not to exceed $100 per day, exclusive of Saturdays, Sundays, and legal public holidays, for each such day of failure to give notification. 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 attorneys' 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. . . ." La. Rev. Stat. Ann. § 44:35(E); Twardzikv. Orleans Parish Sch. Brd., 876 So. 2d 855 (La. App. 4th Cir. 2004) (no evidence custodian acted arbitrarily or capriciously in handling request for records); Ott v. Clarkson, 863 So. 2d 663 (La. App. 4th Cir. 2003) (the fact that appellant was able to obtain relevant documents from a different source that were not found in custodian's records does not necessarily indicate that the custodian acted surreptitiously or unreasonably); Johnson v. City of Pineville, 9 So.3d 313 (La.App. 3d Cir. 2009) (awarding civil penalty of $50 per day for arbitrary and capricious failure to produce arrest records); Deshotels v. White, 226 So.3d 1211 (La.App. 1st Cir. 2017) (awarding civil penalty of $100 per day); Innocence Project v. New Orleans Police Dep’t, 129 So.3d 668 (La.App. 4th Cir. 2013) (awarding civil penalty of $5000); Capital City Press, LLC v. LSU Board of Supervisors, 168 So.3d 669 (La.App. 1st Cir. 2014) (reversing district court finding of contempt and $500 per day fine). Turning the intent of this provision on its head, one Court of Appeal has held repeatedly that these penalties are not applicable if there is no question that the records requested are public records. Washington v. Reed, 668 So. 2d 1313 (La. App. 1st Cir. 1996); Elliot v. District Atty of Baton Rouge, 664 So. 2d 122 (La. App. 1st Cir. 1995), writ denied 664 So. 2d 440 (La. 1995); Foster v. Kemp, 657 So. 2d 681 (La. App. 1995) (all reasoning that the notification requirement referred to in LSA-R.S. 44:35(E)(1) only applies when a question is raised by the custodian as to whether the requested documents are public records).

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12. Settlement, pros and cons

Not addressed.

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E. Appealing initial court decisions

1. Appeal routes

The appeal route is to the state intermediate appellate court for the circuit where the district court is located, then, upon application for writ of certiorari, to the Louisiana Supreme Court.

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2. Time limits for filing appeals

60 days from end of new trial time period or denial of new trial.

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3. Contact of interested amici

Contact the Louisiana Press Association, 404 Europe St., Baton Rouge, Louisiana 70802; telephone number; (225) 344-9309.  Will Chapman is executive director and Mike Rood is general manager.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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F. Addressing government suits against disclosure

There is no apparent case law on this topic.

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Open Meetings

I. Statute - basic application

A. Who may attend?

Meetings of a public body required to be open shall be open to "the public." La. Rev. Stat. Ann. § 42:14(A).

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B. What governments are subject to the law?

1. State

State boards, commissions, and authorities, as well as any political subdivisions thereof, are subject to the law. La. Rev. Stat. Ann. § 42:13(3): “‘Public body’ means . . . any other state, . . . boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.”

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2. County

Parish (County) governing authorities, school boards and boards of levee and port commissioners, and any other parish boards, commissions or authorities, as well as any political subdivisions thereof, are subject to the law. La. Rev. Stat. Ann. § 42:13(3): “‘Public body’ means . . . parish governing authorities; school boards and boards of levee and port commissioners; boards of publicly operated utilities; planning, zoning, and airport commissions; and any other . . . parish . . . boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.”

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3. Local or municipal

Village, town and city governing authorities; planning, zoning and airport commissions; and any other municipal or special district boards, commissions or authorities, as well as any political subdivisions thereof, are subject to the law. La. Rev. Stat. Ann. § 42:13(3): “‘Public body’ means village, town, and city governing authorities . . . and any other . . . municipal . . . boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.”

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C. What bodies are covered by the law?

1. Executive branch agencies

a. What officials are covered?

State and local executive branch officials are not covered. La. Rev. Stat. Ann. § 42:13(3).

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b. Are certain executive functions covered?

Executive functions such as serving on city council, voting to break a tie, or signing or vetoing legislation, are covered only when they occur in the context of a meeting of a public body which is otherwise covered.

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c. Are only certain agencies subject to the act?

State executive branch agencies are not covered. La. Rev. Stat. Ann. § 42:13(3).

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2. Legislative bodies

Covered. La. Rev. Stat. Ann. § 42:13(2): “‘Public body’ means village, town, and city governing authorities; parish governing authorities. . . including any committee or subcommittee of any of these bodies enumerated in this paragraph.” The state legislature itself is governed by somewhat different provisions, La. Rev. Stat. Ann. § 42:18, 42:21, and is exempt from some provisions.  La. Rev. Stat. Ann. § 42:19.

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3. Courts

Judicial proceedings are not covered. La. Rev. Stat. Ann. § 42:17(B). Meetings of judges in their administrative or rulemaking capacities also are not covered. Imbornone v. Early, 401 So.2d 953 (La. 1981).

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4. Nongovernmental bodies receiving public funds or benefits

Nongovernmental bodies receiving public funds are covered if they fall within the definition of a “public body” in La. Rev. Stat. Ann § 42:13. See Guste v. Nicholls College Foundation, 564 So.2d 682 (La. 1990); In re Edward Wisner Donation, 150 So.3d 391, (La.App. 4th Cir. 2014), writ denied, 159 So.3d 463 (La. 2014) (charitable trust advisory committee, formed by city council, was a “public body” subject to Open Meetings Law; Wayne v. Capital Area Legal Servs. Corp., 145 So.3d 427, (La.App. 1st Cir. 2014), writ denied, 149 So.3d 243 (La. 2014) (non-profit corporation that provided legal services to low-income persons not a “public body” so not subject to Open Meetings Law, See also Louisiana Insurance Guaranty Ass'n v. Commission on Ethics for Public Employees, 656 So. 2d 670 (La. App. 1st Cir.), writ denied, 662 So. 2d 467 (La. 1995) (Louisiana Insurance Guarantee Association subject to Open Meeting Law by La. Rev. Stat. Ann § 22:2056); Op. Att'y Gen. 95-321 (community action agency is private, nonprofit corporation, but subject to Open Meeting Law by statute. La. Rev. Stat. Ann. § 23:62); Op. Att'y Gen. 82-529 (meetings of the New Orleans Citywide Development Corporation (NOCDC), a nonprofit corporation formed for the advancement of economic development which makes loans to individuals and businesses, are covered by the Open Meeting Law because NOCDC receives city funds and possesses policy-making and advisory functions); Op. Att'y Gen. 89-352 (meetings of public university faculty senate are covered); Op.Att'y Gen. 94-333 (the LSU student government is a public body for purposes of Open Meeting Law). In 1992, over the strenuous opposition of the Louisiana Press Association, the Legislature enacted a special statute that may be construed as having exempted from the Open Meeting Law certain public university alumni associations and support foundations. The new statute declares that if such an organization meets a porous three-part test, it "shall not be deemed to be a public or quasi-public corporation . . . for any purpose whatsoever . . ." La. Rev. Stat. Ann. § 17:3390. See also Op. Att'y Gen. 91-203 (LSU "Tiger Athletic Foundation" held to be a "private, nonprofit corporation"); Op. Att’y Gen. 14-106 (Greater New Orleans Sports Foundation and New Orleans Super Bowl XVII Host Committee, Inc. not subject to Open Meetings Law even though they receive some public funding.

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5. Nongovernmental groups whose members include governmental officials

Such groups will be covered if they fall within the definition of a “public body” in La. Rev. Stat. Ann § 42:13. Louisiana High Sch. Athletics Ass'n, Inc. v. State, 107 So.3d 583, 607 (La. 2013).

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6. Multi-state or regional bodies

Multistate bodies are not referred to in the statute. Regional planning bodies with jurisdiction limited to Louisiana would be covered. La. Rev. Stat. Ann. § 42:13(3): “‘Public body’ means . . . planning, zoning, and airport commissions; and any other . . . special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.”

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7. Advisory boards and commissions, quasi-governmental entities

Boards and commissions created pursuant to public authority and that possess advisory functions are covered by the Open Meeting Law. La. Rev. Stat. Ann. § 42:13(3): “‘Public body’ means . . . any other state, parish, municipal, or special district boards, commissions, or authorities, and those of any political subdivision thereof, where such body possesses policy making, advisory, or administrative functions, including any committee or subcommittee of any of these bodies enumerated in this paragraph.” See e.g., Op. Att'y Gen. 95-313 (committee of private citizens appointed by mayor for discussion, research and advice subject to Open Meeting Law); Op. Att'y Gen. 92-726 (Caddo Parish Special Education Advisory Council and its subcommittees are public bodies subject to Open Meeting Law); Op. Att'y Gen. 92-476 (Lake Pontchartrain Basin Foundation subject to Open Meeting Law); Op. Att'y Gen. 92-299 (advisory board to public library); Op. Att'y Gen. 89-481 (citizens' advisory committee on city charter revision; appointed by Mayor); Op. Att'y Gen. 87-779 (medical staff of a parish [county] hospital district is covered by Open Meeting Law because it is created pursuant to public authority and is authorized to give advice and assistance to the hospital district commission, to promulgate rules and regulations for the hospital staff, and to approve appointment of the hospital director); Op. Att'y Gen. 79-1392 (an advisory commission appointed by the mayor, comprised of private citizens and executive officials, and granted advisory functions is governed by the Open Meeting Law; in function, the commission can be classified as a subcommittee of a municipal governing body). But see La. Rev. Stat. Ann. § 17:3390(B)(l) (certain university foundations not deemed public or quasi-public corporations); Op. Att'y Gen. 91-203 (LSU Tiger Athletic Foundation held to be a "private, nonprofit corporation"); Op. Att'y Gen. 96-441 (Industry Task Force/Advisory Group on Unnecessary Rules and Regulations in State Government is not a public body because membership is voluntary and it was not created by any legal entity). An advisory board created and governed by federal law, however, is not subject to the Louisiana Open Meeting Law, even though the board functions within the state university system. Dorson v. Louisiana, 657 So. 2d 755 (La. App. 4th Cir.), writ denied, 662 So. 2d 472 (La. 1995) (Institutional Animal Care and Use Committee not subject to Open Meeting Law).

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8. Other bodies to which governmental or public functions are delegated

Covered if they fall within the definition of a “public body” in La. Rev. Stat. Ann § 42:13. Seghers v. Community Advancement Inc., 357 So.2d 626 (La. App. 1st Cir. 1978) (Private nonprofit agency to which city and parish [county] governing bodies have delegated the duties of administering anti-poverty programs is covered by Open Meeting Law). See also . But see Property Insurance Association of Louisiana, 31 So.3d 1012 (La. 2010) (fire insurance rating association not public body, applying four-part test: whether entity was created by the Legislature; whether entity’s powers were specifically defined by Legislature; whether property of entity belongs to public and whether entity’s functions are exclusively of public character and performed solely for public benefit); M.K.L. Dev., L.L.C. v. City of New Orleans, 772 So. 2d 711 (La. App. 4th Cir.), writ denied, 778 So. 2d 1146 (La. 2001) (finding that private nonprofit corporation subleasing a building from the government and then sub-subleasing space within the building to tenants not performing any sort of "governmental function" described in Seghers and is not a public body). But a cooperative electric corporation that receives no public funds is not a public body under the Open Meeting Law even though it can set rates without the approval of the state Public Service Commission. Huneriager v. Dixie Electric Membership Corp., 434 So.2d 590 (La. App. 1st Cir.), writ denied, 440 So.2d 149 (La. 1983). See also La. Rev. Stat. Ann. § 17:3390(B)(l) (certain university foundations not deemed public or quasi-public corporations); Op. Att'y Gen. 00-144 (Workforce Investment Board is a public body); Op. Att'y Gen. 91-203 (LSU Tiger Athletic Foundation held to be a "private, nonprofit corporation"). Op. Att'y Gen. 96-227 (Lafayette Ass'n of Retarded Citizens is a public body because it receives public funds and administers governmental function in its anti-poverty program); Op. Att'y Gen. 94-259 (Louisiana Development Partnerships Inc., a nonprofit corporation created to implement government programs to offer low income housing is subject to act). Any "quasi-public nonprofit corporation" organized by a governmental entity under La. Rev. Stat. Ann. § 12:202.1(D) is subject to the Open Meeting Law. La. Rev. Stat. Ann. § 12:202.1(D); Op. Att'y Gen. 93-628 (Almonaster-Michoud Industrial District Center Inc.); Op. Att'y Gen. 94-442 (Floodcomm Corporation). In addition, a committee or subdivision of a public body subject to the Open Meeting Law is itself subject to the Open Meeting Law. La. Rev. Stat. Ann. 42:4.2(A)(2). Such a subgroup may hear and review matters as authorized by its parent public body, but may not take action in matters that are the business of the parent public body. Op. Att'y Gen. 96-77.

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9. Appointed as well as elected bodies

The statute makes no distinction between appointed and elected bodies, although, for other reasons discussed elsewhere in this outline, not all appointed bodies are covered by the Open Meeting Law.

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D. What constitutes a meeting subject to the law

1. Number that must be present

a. Must a minimum number be present to constitute a "meeting"?

A quorum – a simple majority of the total membership of a public body – must be present to constitute a "meeting." La. Rev. Stat. Ann. § 42:13(2) and (4). Thus, a gathering of a quorum of members at which business is discussed is subject to the Open Meeting Law, even if labeled an "informal supper meeting." Op. Att'y Gen. 96-207. Proxies may not vote and do not count in determining whether a quorum is present. Op. Att'y Gen. 00-204; Op. Att'y Gen. 93-708. A member may not vote via a video telephone. Op. Att'y Gen. 99-385. If the members rotate being present to avoid creating a quorum, such "walking quorums" are a violation of the Open Meeting Law. Op. Att'y Gen. 85-113. See also Op. Att'y Gen. 92-166 (law may not be circumvented "in any unannounced or secretive manner," including telephone contact among quorum to decide on a course of action). See also Op. Att'y Gen. 99-50 and 00-144 (there is no violation where less than an actual quorum of the public body or a committee of a public body meets where no decisions, votes, or other actions are taken).

Recent opinions of the Attorney General have emphasized that the Open Meetings Law requires the physical presence of members of a public body at open meetings in order to participate in any matter. Any participation by telephone, whether to obtain a quorum or to allow voting by non-present board members is a violation of the law. Op. Att'y Gen. 02-0040; see also Op. Att'y Gen. 01-0256 (non-present board members cannot be counted by telephone to form a quorum or vote by voice or facsimile); Op. Att'y Gen. 00-423 (deliberation or act by teleconferencing would be a violation of the open meetings law).

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b. What effect does absence of a quorum have?

In the absence of a quorum, the gathering is not a “meeting” and is not subject to the Open Meeting Law. La. Rev. Stat. Ann. § 42: 13(2) and (4), 42:5(A); Op. Att'y Gen. 93-414.

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2. Nature of business subject to the law

a. "Information gathering" and "fact-finding" sessions

A meeting is covered where a quorum of a public body convenes "to deliberate or act on a matter which the public body as an entity has supervision, control, jurisdiction, or advisory power."  La. Rev. Stat. Ann § 42:13(2). "Meeting" shall also mean the convening of a quorum of a public body by the public body or by another public official to receive information regarding a matter over which the public body has supervision, control, jurisdiction, or advisory power." La. Rev. Stat. Ann. § 42: 13(2) and (4); Op. Att'y Gen. 93-315 (Meeting of Lafayette City Council held to discuss "goal seeking" is a meeting "to receive information" covered by section 42:4.2(A)(1)); Op. Att'y Gen. 89-389 (auditors' exit conference with a quorum of members of parish school board is a meeting "to receive information" covered by section 4.2(A)(1).) The text of section 42:13(2) reflects a 1988 amendment that overruled a 1987 Court of Appeal decision holding that, although the Mayor of New Orleans had addressed a local park commission concerning patronage, governance, and related matters, because the commission members said little or nothing in response, there was no "deliberation," and thus no "meeting" within the purview of the Open Meeting Law. Common Cause v. Morial, 506 So.2d 167 (La. App. 4th Cir.), writ denied, 512 So.2d 458 (La. 1987).

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b. Deliberation toward decisions

The definition of meeting includes the convening of a public body "to deliberate." La. Rev. Stat. Ann. § 42:13(2). The Louisiana Constitution also states, "[n]o person shall be denied the right to observe the deliberations of public bodies . . . except in cases established by law." art. XII, § 3 (emphasis added). "Deliberation" is broadly construed to include any discussion of the business of a public body. See, e.g., Op. Att'y Gen. 91-339 (board retreat in Arizona to plan future of public hospital).

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3. Electronic meetings

a. Conference calls and video/Internet conferencing

The statute does not specify. Attorney General opinions conclude, however, that any participation by telephone, whether to obtain a quorum or to allow voting by non-present board members, is a violation of the law. Op. Att'y Gen. 02-0040; see also Op. Att'y Gen. 01-0256 (non-present board members cannot be counted by telephone to form a quorum or vote by voice or facsimile); Op. Att'y Gen. 00-423 (deliberation or act by teleconferencing would be a violation of the open meetings law).

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b. E-mail

The statute does not specify, but the rationale of Op. Att'y Gen 93-137— that telephone polls of members of a public body may not be used to thwart the Open Meeting Law— would seem to apply.

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c. Text messages

No specific provision, but “meeting” is defined as “the convening of a quorum of a public body,” so text messaging between persons could be subject to the Open Meetings law only if the people exchanging messages constituted a quorum of the public body.

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d. Instant messaging

No specific provision, but “meeting” is defined as “the convening of a quorum of a public body,” so instant messaging between persons could be subject to the Open Meetings law only if the people exchanging messages constituted a quorum of the public body.

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e. Social media and online discussion boards

No specific provision, but “meeting” is defined as “the convening of a quorum of a public body,” so use of social media or online discussion boards could be subject to the Open Meetings law only if the people doing so constituted a quorum of the public body.”

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E. Categories of meetings subject to the law

1. Regular meetings

a. Definition

The statute does not define "regular meeting." Notice provisions apply to "regular, special, or rescheduled" meetings. La. Rev. Stat. Ann. § 42:19(A)(1).

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b. Notice

Generally must be provided by "all public bodies, except that the legislature and its committees and subcommittees, shall give written public notice of their regular meetings, if established by law, resolution or ordinance, at the beginning of each calendar year. Such notice shall include the dates, times and places of such meetings." La. Rev. Stat. Ann. § 42:19(A)(1). Any exception to the requirement for notice of date, time, place and agenda should be narrowly and strictly construed. Wagner v. Beauregard Parish Police Jury, 525 So.2d 166, 169 (La. App. 3rd Cir. 1988).

Notice must be given no later than 24 hours before the meeting and at the beginning of each calendar year if regular meetings are established by law, resolution, or ordinance. La. Rev. Stat. Ann. § 42:19(A)(1). See Marien v. Rapides Parish Police Jury, 717 So. 2d 1187 (La. App. 3rdCir.), writ denied, 727 So. 2d 1166 (La. 1998); Op. Att'y Gen. 99-404.

Any member of the news media who requests notice shall be given notice of all meetings in the same manner as is given to members of the public body. La. Rev. Stat. Ann. § 42:19(A)(2).

Notice must be posted at the principal office of the public body holding the meeting, or if no such office exists, at the building where the meeting is held; or by publication in the official journal of the public body. La. Rev. Stat. Ann. § 42:19(A)(2); Op. Att'y Gen. 99-404.

A public body may not take up an item not on the agenda distributed at least twenty-four hours before the meeting except by a unanimous vote of the members present. La. Rev. Stat. Ann. 42:19(A)(1). Significant proposals must be identified specifically in the agenda. Hayes v. Jackson Parish Sch. Bd., 603 So.2d 274 (La. App. 2d Cir. 1992). Agenda items must be more substantive and detailed than simply "old business," "new business," or "unfinished business." Ops. Att'y Gen. 85-354 and 87-676. The notice need only be "reasonable," however. Shirley v. Beauregard Parish Sch. Bd., 615 So. 2d 17 (La. App. 3d Cir. 1993) (decision to hire individual for assistant principal vacancy not voidable because agenda stated only that it would "hear recommendations" for the position, and not that it would also act on the recommendations); Organization of United Taxpayers v. Louisiana Housing Finance Agency, 703 So. 2d 107 (La. App. 1st Cir. 1997), writ denied, 709 So. 2d 745 (La. 1998) (agenda item stating "Tax Credit Discussions" was sufficient notice of decision to grant extension of tax credits to a particular developer); See also Op. Att'y Gen. 93-230 (agenda must be reasonably clear so as to advise the public in general terms of the subjects to be discussed). A public body must vote affirmatively to enlarge the agenda before it votes on the substantive proposal to be added. Hayes v. Jackson Parish Sch. Bd., 603 So.2d 274 (La. App. 2d Cir. 1992); Wagner v. Beauregard Parish Police Jury, 525 So.2d 166 (La. App. 3rd Cir. 1988). Frequent use of the agenda amendment procedure should be avoided because such use could become a subterfuge for avoiding advance public notice of the actual agenda. Op. Att'y Gen. 87-649. A public body may not delegate its authority to determine its agenda. Jackson v. Assumption Parish Sch. Bd., 652 So. 2d 549 (La. App. 1st Cir. 1995). (School Board improperly delegated to school superintendent the authority to determine agenda and determine who could appear at public meetings). A public body may require the use of agenda "forms" for public participation in setting agenda. Op. Att'y Gen. 94-152. A public body may not avoid giving notice and preparing an agenda for each meeting by giving one notice at the beginning of the year and declaring itself to be in "continuing session" with a number of "segments" of its one meeting. Op. Att'y Gen. 95-226.

The notice must include the date, time, and place of the meeting, as well as the agenda. La. Rev. Stat. Ann. § 42:19(A)(l). There also must be attached to the notice of meeting a statement identifying the court, case number, and the parties relative to any pending litigation to be considered; and a statement identifying the parties involved and reasonably identifying the subject matter of any prospective litigation to be considered for which formal written demand has been received. La. Rev. Stat. Ann. 42:19(A)(1). The statement must be attached regardless whether such matters will be discussed in an executive session. Id.

The penalties for failure to give adequate notice are the same as for other provisions of Open Meeting Law. In Wagner v. Beauregard Parish Police Jury, 525 So.2d 166 (La. App. 3rd Cir. 1988) and Hayes v. Jackson Parish Sch. Bd., 603 So.2d 274 (La. App. 2d Cir. 1992), the courts voided actions taken in violation of the notice requirements of the statute (actions taken not specified in agenda). A court also may enter an injunction to prevent a public body from acting in conformity with a policy adopted at a meeting held without notice in violation of the Open Meeting Law. Shirley v. Beauregard Parish Sch. Bd., 615 So. 2d 17 (La. App. 3d Cir. 1993) (school board enjoined from acting in conformity with improperly adopted "personnel selection policy"). See Op. Att'y Gen. 98-232 (actions in violation of notice requirements are voidable only if suit challenging same is commenced within 60 days of the action).

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c. Minutes

"All public bodies shall keep written minutes of all their open meetings." La. Rev. Stat. Ann. § 42:20(A).

Minutes must include: (a) the date, time and place of the meeting; (b) the members of the public body recorded as either present or absent, (c) the substance of all matters decided, and at the request of any member, a record, by individual member, of any votes taken; and (d) any other information that the public body requests be included or reflected in the minutes. La. Rev. Stat. Ann. § 42:20(A)(l) through (4). The minutes need not be a verbatim transcript of the meeting. Op. Att'y Gen. 94-376.

Minutes of open meetings are public records. They "shall be available within a reasonable time after the meeting." La. Rev. Stat. Ann. § 42:20(B). See Op. Att'y Gen. 97-397 (minutes of political subdivision of the state must be published in a newspaper; minutes of other public bodies need only be prepared in a presentable manner for review).

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2. Special or emergency meetings

a. Definition

The statute does not define "special meetings." "[C]ases of extraordinary emergency" are limited to "national disaster, threat of epidemic, civil disturbances, suppression of insurrections, the repelling of invasions, or other matters of similar magnitude." La. Rev. Stat. Ann. § 42:17(A)(5).

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b. Notice requirements

The notice requirements for "special meetings" are identical to the requirements for regular meetings. La. Rev. Stat. Ann. § 42:19(B). In cases of "extraordinary emergency," the standard notice requirements do not apply. La. Rev. Stat. Ann. § 17(A)(5), 42:19(A)(1). Nonetheless, the public body shall give such notice of an emergency meeting as the public body "deems appropriate and circumstances permit." La. Rev. Stat. Ann. § 42:19(A)(1).

Notice for special meetings shall be given no later than twenty-four hours before the meeting. La. Rev. Stat. Ann. § 42:19(A)(1); Op. Att'y Gen. 99-404. Notice for emergency meetings shall be given as the public body "deems appropriate and circumstances permit." La. Rev. Stat. Ann. § 42:19(A)(1).

Any member of the news media who requests notice shall be given notice of all meetings in the same manner as is given to members of the public body. La. Rev. Stat. Ann. § 42:19(A)(2).

Notice of special meetings shall be posted at the principal office of the public body holding the meeting, or if no such office exists, at the building where the meeting is held, or by publication in the official journal of the public body. La. Rev. Stat. Ann. § 42:19(A)(2); Op. Att'y Gen. 99-404.

The statute does not contain a specific provision for agendas at special meetings. To the extent possible, however, the public body should conform to the agenda requirements for regularly scheduled meetings. Those requirements include: A public body may not take up an item not on the agenda distributed at least twenty-four hours before the meeting except by a two-thirds vote of the members present. Significant proposals must be identified specifically in the agenda. Hayes v. Jackson Parish Sch. Bd., 603 So.2d 274 (La. App. 2d Cir. 1992). Agenda items must be more substantive and detailed than simply "old business," "new business," or "unfinished business." Ops. Att'y Gen. 85-354 and 87-676. The notice need only be "reasonable," however. Shirley v. Beauregard Parish Sch. Bd., 615 So. 2d 17 (La. App. 3d Cir. 1993) (decision to hire individual for assistant principal vacancy not voidable because agenda stated only that it would "hear recommendations" for the position, and not that it would also act on the recommendations); See also Op. Att'y Gen. 93-230 (agenda must be reasonably clear so as to advise the public in general terms of the subjects to be discussed). A public body must vote affirmatively to enlarge the agenda before it votes on the substantive proposal to be added. Hayes v. Jackson Parish Sch. Bd., 603 So.2d 274 (La. App. 2d Cir. 1992); Wagner v. Beauregard Parish Police Jury, 525 So.2d 166 (La. App. 3rd Cir. 1988). Frequent use of the agenda amendment procedure should be avoided because such use could become a subterfuge for avoiding advance public notice of the actual agenda. Op. Att'y Gen. 87-649. A public body may not delegate its authority to determine its agenda. Jackson v. Assumption Parish Sch. Bd., 652 So. 2d 549 (La. App. 1st Cir. 1995). (School Board improperly delegated to school superintendent the authority to determine agenda and determine who could appear at public meetings). A public body may require the use of agenda "forms" for public participation in setting agenda. Op. Att'y Gen. 94-152. A public body may not avoid giving notice and preparing an agenda for each meeting by giving one notice at the beginning of the year and declaring itself to be in "continuing session" with a number of "segments" of its one meeting. Op. Att'y Gen. 95-226.

Notice for special meetings should include date, time, and place of the meeting, as well as the agenda. La. Rev. Stat. Ann. § 42:19(A)(1). There also must be attached to the notice of meeting a statement identifying the court, case number, and the parties relative to any pending litigation to be considered; and a statement identifying the parties involved and reasonably identifying the subject matter of any prospective litigation to be considered for which formal written demand has been received. La. Rev. Stat. Ann. 42:19(A)(l). The statement must be attached regardless whether such matters will be discussed in an executive session. Id. Notice for emergency meetings shall be given as the public body "deems appropriate and circumstances permit." La. Rev. Stat. Ann. § 42:19(A)(1).

The penalties for failure to give adequate notice are the same as for other provisions of Open Meeting Law. In Wagner v. Beauregard Parish Police Jury, 525 So.2d 166 (La. App. 3rd Cir. 1988)  and Hayes v. Jackson Parish Sch. Bd., 603 So.2d 274 (La. App. 2d Cir. 1992), the courts voided actions taken in violation of the notice requirements of the statute (actions taken not specified in agenda). A court also may enter an injunction to prevent a public body from acting in conformity with a policy adopted at a meeting held without notice in violation of the Open Meeting Law. Shirley v. Beauregard Parish Sch. Bd., 615 So. 2d 17 (La. App. 3d Cir. 1993) (school board enjoined from acting in conformity with improperly adopted "personnel selection policy").

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c. Minutes

"All public bodies shall keep written minutes of their open meetings." La. Rev. Stat. Ann. § 42:20(A).

(1) The date, time and place of the meeting; (2) the members of the public body recorded as either present or absent; (3) the substance of all matters decided, and at the request of any member, of any votes taken, and (4) any other information that the public body requests be included or reflected in the minutes. La. Rev. Stat. Ann. § 42:20(A)(1)-(4).

Minutes of open meetings are public records. They "shall be available within a reasonable time after the meeting." La. Rev. Stat. Ann. § 42:20(B).

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3. Closed meetings or executive sessions

a. Definition

The statute does not define "executive session" except by reference to certain "[e]xceptions to open meetings." See La. Rev. Stat. Ann. § 42:6.1(A).

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b. Notice requirements

A public body may hold executive sessions only upon an affirmative vote of two-thirds of its constituent members present at an open meeting for which notice was given pursuant to La. Rev. Stat. Ann. § 42:19. La. Rev. Stat. Ann. § 42:16. Once a meeting is called and notice given, it may not be canceled or converted into an executive session except in compliance with statutory procedure. Norris v. Monroe City School Bd., 580 So.2d 425 (La. App. 2nd Cir. 1991).

There are no special requirements for the time limit for giving notice of executive sessions, for who must be given notice of executive sessions, for where notice must be posted for executive sessions, for agenda items for executive sessions, or for penalties for failure to give adequate notice of executive sessions.

Note, however, that there must be attached to the notice of meeting a statement identifying the court, case number, and the parties relative to any pending litigation to be considered; and a statement identifying the parties involved and reasonably identifying the subject matter of any prospective litigation to be considered for which formal written demand has been received. La. Rev. Stat. Ann. 42:19(A)(l). The statement must be attached regardless whether such matters will be discussed in an executive session. Id.

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c. Minutes

Minutes are required only for "open meetings," not for "executive sessions." La. Rev. Stat. Ann. § 42:20(A).

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d. Requirement to meet in public before closing meeting

A public body may hold nonpublic executive sessions only upon an affirmative vote of two-thirds of its constituent members present at an open meeting. La. Rev. Stat. Ann. § 42:16.

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e. Requirement to state statutory authority for closing meetings before closure

Closure is limited to those matters specifically exempted and the "reason" for going into executive session shall be recorded in the minutes. La. Rev. Stat. Ann. § 42:16. See also Norris v. Monroe City School Bd., supra.; Courvelle v. Louisiana Recreational and Used Motor Vehicle Commission, 21 So.3d 340 (La.App. 1st Cir. 2009) (specific reasons must be given as to how a public discussion of certain litigation would be detrimental).

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f. Tape recording requirements

None.

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F. Recording/broadcast of meetings

1. Sound recordings allowed

Anyone present at a public meeting may make a record of the proceedings on video or tape (audio), "film" the proceedings (presumably including both still photography and motion pictures), or broadcast them live. La. Rev. Stat. Ann. § 42:23(A); Op. Att'y Gen. 95-277; Op. Att'y Gen. 94-14. But a regulation by a public body prohibiting recording of executive sessions by members does not violate the Open Meeting Law. Dean v. Guste, 414 So.2d 862 (La. App., 4th Cir.), writ denied, 417 So.2d 366 (La.), cert. denied, 459 U.S. 1070, 103 S.Ct. 489 (1982). The public body shall establish standards to insure proper decorum when lighting, recording, or broadcasting equipment is in use. La. Rev. Stat. Ann. 42:23(B); Op. Att'y Gen. 95-277.

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2. Photographic recordings allowed

No specific provision for or limitation of photographic recordings. Presumably, however, section 42:23(A) permits both motion picture "filming" and still photography.

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G. Access to meeting materials, reports and agendas

No specific provisions.

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H. Are there sanctions for noncompliance?

The court has jurisdiction and authority to issue all necessary orders to require compliance with, or to prevent noncompliance with, or to declare the rights of parties under the Open Meeting Law. Any noncompliance with the orders of the court may be punished as contempt of court. La. Rev. Stat. Ann. § 42:26(B).

“Any action taken in violation of this Chapter shall be voidable by a court of competent jurisdiction.”  La. Rev. Stat. Ann. § 42:24.

In any enforcement proceeding the plaintiff may seek and the court may grant any or all of the following forms of relief: (1) A writ of mandamus; (2) Injunctive relief; (3) Declaratory judgment; (4) Judgment rendering the action void as provided in R.S. 42:24; and/or (5) Judgment awarding civil penalties as provided in La. Rev. Stat. Ann. § 42:28.

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A. Exemptions in the open meetings statute

1. Character of exemptions

Specific exemptions are found in La. Rev. Stat. Ann. § 42:17 and 42:18.

As to discretionary exemptions, see Louisiana Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483 (5th Cir. 1995), cert. denied 515 U.S. 1145 (1995). (Louisiana Commission on Human Rights not required to meet in executive session even where statute allows it to do so).

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2. Description of each exemption

a. Discussion of the character, professional competence, or physical or mental health of a person, unless that person requests that the discussion be held at an open meeting. The exception may not be used to call an executive session for discussion of the appointment of a person to a public body. La. Rev. Stat. Ann. § 42:17(A)(l). See Parent-Community Alliance for Quality Ed. Inc. v. Orleans Parish Sch. Bd., 385 So.2d 33 (La. App. 4th Cir.), writ denied, 386 So.2d 1379 (La. 1980) (allowing use of executive sessions to interview and discuss qualifications of candidates for school superintendent, who is considered an executive official, but not to engage in the selection process by vote or polling of committee members); accord, Brown v. East Baton Rouge Parish Sch. Bd., 405 So.2d 1148 (La. App. 1st Cir. 1981). Op. Att'y Gen. 91-158A. The Attorney General has expressed the opinion that this exemption includes discussion of juridical and artificial persons (i.e. corporations and partnerships), as well as individual human beings, Op. Att'y Gen. 96-358, but there is no case law specifically addressing this issue. One Attorney General opinion suggests that a public body is compelled by "privacy considerations" to discuss public employee "rating forms" in executive session. Op. Att'y Gen. 91-80, citing Trahan v. Larrivee, 365 So.2d 294 (La. App. 3rd Cir. 1979) (employee performance evaluations privileged from Public Records Act disclosure by state constitutional privacy right). Compare Op. Att'y Gen. 91-48, released only 15 days prior to Op. Att'y Gen. 91-80 (Open Meeting Law does not require executive session discussion of certain school board matters, but public disclosure may constitute actionable invasion of privacy, citing state constitution Article I, section 5 and Trahan v. Larrivee, supra). Section 6.1(A)(l) was amended in 1989 to require that except in cases of "extraordinary emergency," a public body must notify a person who is to be discussed at an executive session held under authority of the section. The notification must be in writing and must be provided at least twenty-four hours before the meeting.

b. Strategy sessions or negotiations with respect to (a) collective bargaining, (b) prospective litigation after formal written demand, or (c) litigation, "when an open meeting would have a detrimental effect on the bargaining or litigating position of the public body." 42:17(A)(2). The Attorney General has stated that it is not enough to state that the reason for going into executive session is "for the purpose of discussing the negotiations being conducted . . . on behalf of the Board." The negotiations must be specifically identified. The type of negotiations should be kept secret only if the negotiations would be "seriously jeopardized." "This should be done only after advice from counsel and only in the most extreme circumstances." Op. Att'y Gen. 86-434. Subsequent public disclosure of discussions and strategies held in executive session is not required. Op. Att'y Gen. 99-51. Opposing parties may attend the executive session without opening it to the general public. Id. Merely stating that an executive session is to consider "personnel, negotiations and/or litigation" violates the Open Meeting Law. Op. Att'y Gen. 85-789. There also must be attached to the notice of meeting a statement identifying the court, case number, and the parties relative to any pending litigation to be considered; and a statement identifying the parties involved and reasonably identifying the subject matter of any prospective litigation to be considered for which formal written demand has been received. La. Rev. Stat. Ann. § 42:7(A)(l)(iii). The statement must be attached regardless whether such matters will be discussed in an executive session. Id.

c. Discussion regarding security personnel, plans or devices. La. Rev. Stat. Ann. § 42:17(A)(3).

d. Investigative proceedings regarding allegations of misconduct. La. Rev. Stat. Ann. § 42:17(A)(4); Op. Att'y Gen. 98-134 (death investigations conducted by Child Death Review Panel may be conducted in executive session).

e. Cases of extraordinary emergency such as natural disaster or civil disturbances. La. Rev. Stat. Ann. § 42:17(A)(5).

f. Certain meetings of the State Mineral and Energy Board at which confidential records or matters are discussed. La. Rev. Stat. Ann. § 42:17(A)(6).

g. Conferences between a school board and individual students, tutors or parents regarding problems of such students, tutors or parents unless the student, tutor or parent requests an open meeting. La. Rev. Stat. Ann. § 42:17(A)(7).

h. Presentations and discussions at meetings of civil service boards of civil service test questions and answers. La. Rev. Stat. Ann. § 42:17(A)(8).

i. The portion of any meeting of the Second Injury Board during which records or matters regarding the settlement of a workers' compensation claim are required to be considered or discussed by the board with its staff in order to grant prior written approval as required by R.S. 23:1378(A)(6). La. Rev. Stat. Ann. § 42:17(A)(9).

j. "[A]ny other matters now provided for or as may be provided for by the legislature." La. Rev. Stat. Ann. § 42:6.1(A)(8). Two Attorney General opinions interpret this provision as permitting an executive session for the purpose of discussing any record to which the public is denied access under the Public Records Act. Op. Att'y Gen. 92-698 (discussion of "personal and/or corporate" tax returns and financial records by local citizens committee administering federal small business loan funds); Op. Att'y Gen. 89-550 (discussion of similar records by loan screening committee of Louisiana Economic Development Corporation). Neither opinion cites a single case in support of this conclusion, nor does either opinion mention the general presumption favoring the openness of public meetings and disfavoring exemptions. That presumption would seem to have particular force when there is no specific statutory provision authorizing an executive session. Indeed, precisely this analysis was advanced in Op. Att'y Gen. 90-132, which emphasizes that "any exception to the Open Meetings Law must be narrowly construed," citing Brown v. East Baton Rouge Parish Sch. Bd., supra ("eight enumerated reasons for an executive session are exclusive"); See also Op. Att'y Gen. 89-389.

k. Judicial proceedings. La. Rev. Stat. Ann. § 42:17(B).

l. Certain actions by the State Legislature. La. Rev. Stat. Ann. § 42:18.

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B. Any other statutory requirements for closed or open meetings

1. La. Rev. Stat. Ann. § 46:1073(B) (part of the "Enhanced Ability to Compete" Act) (discussion of "marketing strategies and strategic plans" of public hospitals may be held in executive session); See also, Op. Att'y Gen. 93-62; Op. Att'y Gen. 95-193; Op. Att'y Gen. 95-316; Op. Att'y Gen. 95-346 (applying § 46:1073(B)). Two related cases, 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) and 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 La. Rev. Stat. Ann. § 46:1070-1076, the Enhanced Ability to Compete Act ("EACA"). The First Circuit held that the clear language of the Louisiana 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.

2. La. Rev. Stat. Ann. § 17:3390 (may entirely exempt certain university foundations).

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C. Court mandated opening, closing

None that we are aware of, although of course the courts may mandate access to certain governmental proceedings pursuant to the First Amendment, the Louisiana Constitution, or the common law.

Discovery of proceedings of closed meeting

The proceedings of a closed meeting or executive session are discoverable. See Connick v. Brechtel, 713 So. 2d 583 (La. App. 4th Cir. 1998). In Connick, the District Attorney brought suit against members of the Orleans Parish School Board for violation of the Open Meeting Law, alleging members made a binding decision with regard to the superintendent's employment while in executive session. See La. Rev. Stat. Ann. § 42:10(B) (district attorney enforces Open Meeting Law for the district he serves). Board members refused to be deposed on the contents of the executive session, in response to which the District Attorney moved for, and the trial court granted, a motion to compel. School Board argued on appeal that the entire executive session was privileged from discovery, or in the alternative, that such portions of the session as dealt with "the character, professional competence, or physical or mental health of a person" — as per the exemption from the Open Meeting Law provided by La. Rev. Stat. Ann. § 42:6.1(A)(1) — were privileged. The Fourth Circuit held, to the contrary, "the fact that some matters may be discussed in executive session does not render the School Board's discussions and actions taken in executive session privileged. Such a rule would completely nullify Louisiana's Open Meetings Law. . . ." A concurring judge pointed out that "[a] substantial purpose of the executive session exceptions is to provide for unimpeded discussion at the time of the discussion. After the fact discovery of such discussion is not the same impediment to discussion as contemporaneous disclosure would be." The court ordered that members submit to deposition and other discovery without any privilege whatsoever, and denied a motion for a protective order restricting the District Attorney's disclosure of information within the provenance of section 42:6.1(A)(1).

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III. Meeting categories - open or closed

A. Adjudications by administrative bodies

Closed, if the bodies are "quasi-judicial in nature and function." Central Metairie Civic Association v. Parish of Jefferson, 478 So. 2d 1298 (La. App. 5th Cir. 1985), writ denied, 481 So. 2d 631 (La. 1986) (zoning appeals board or boards of adjustment hearings are not covered by the Open Meeting Law).

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1. Deliberations closed, but not fact-finding

2. Only certain adjudications closed, i.e. under certain statutes

B. Budget sessions

Not exempted.

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C. Business and industry relations

Not exempted.

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D. Federal programs

Not exempted.

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E. Financial data of public bodies

Not exempted.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

Not specifically exempted in Open Meeting Law, but proprietary or trade secret information which has been submitted to a public body is protected under the Public Records Act. La. Rev. Stat. Ann. § 44:3.2. Additionally, some opinions of the Attorney General interpreting the Public Records Act have exempted such information purportedly of a private or confidential nature. Op. Att'y Gen. 83-493; 82-860; 87320; 87-355; 89-550, 89-598, and 92-698. The Louisiana Constitution protects against invasions of privacy. Article I, Section 5.

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G. Gifts, trusts and honorary degrees

Not Exempted.

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H. Grand jury testimony by public employees

Closed. Judicial proceedings are not covered by the Open Meeting Law. La. Rev. Stat. Ann. § 17(B).

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I. Licensing examinations

May be closed if they involve discussion of the character, professional competence, or physical or mental health of any person, unless that person requests an open meeting. La. Rev. Stat. Ann. § 42:17(A)(1). Otherwise, such examinations are open. Op. Att'y Gen. 74-1103 (administrative hearing to consider the revocation of a license and closing of a nursing home shall be open to the public); Op. Att'y Gen. 77-1 (City-parish council meeting to discuss the appeal of a denial of an alcoholic beverage control license must be open unless the character, professional competence, or physical or mental health of the potential licensee is discussed).

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J. Litigation, pending litigation or other attorney-client privileges

A public body may hold an executive session to conduct a strategy session or negotiations with respect to prospective litigation after formal written demand, or litigation when an open meeting would have a detrimental effect on the litigating position of the public body. La. Rev. Stat. Ann. § 42:17(A)(2).

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K. Negotiations and collective bargaining of public employees

A public body may hold an executive session to conduct strategy sessions or negotiations with respect to collective bargaining if an open meeting would have a detrimental effect on the bargaining position of the public body. La. Rev. Stat. Ann. § 42:17(A)(2).

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1. Any sessions regarding collective bargaining

Only those which would have a detrimental effect on the bargaining position of the public body. La. Rev. Stat. Ann. § 42:17(A)(2).

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2. Only those between the public employees and the public body

The statute does not make this distinction.

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L. Parole board meetings, or meetings involving parole board decisions

Not exempted by the Open Meeting Law. See Hoffpauir v. State, Dept. of Public Safety and Corrections, 762 So. 2d 1219 (La. App. 1st Cir.), writ denied, 772 So. 2d 652 (La. 2000). A 1996 statute, however, gives the Parole Board the ability to promulgate its own "rules, regulations, policy and guidelines governing the disclosure and dissemination of information regarding sex offenders to the public." La. Rev. Stat. Ann. § 15:547. This statute may be invoked to create additional "exceptions" to the Open Meeting Law.

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M. Patients, discussions on individual patients

May be closed unless that person requests an open meeting if discussion involves physical or mental health of the patient. La. Rev. Stat. Ann. § 42:17(A)(l).

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N. Personnel matters

May be closed if discussion involves the character, professional competence or physical or mental health of a person, unless that person requests an open meeting. La. Rev. Stat. Ann. § 42:17(A)(l).

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1. Interviews for public employment

Generally not exempt. May be closed only if discussing the character, professional competence or physical or mental health of the person. La. Rev. Stat. Ann. § 42:17(A)(1). It is not proper to close a meeting to make a selection or recommendation concerning hiring. Op. Att'y Gen. 94-14.

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2. Disciplinary matters, performance or ethics of public employees

Generally not exempt. May be closed only if discussing the character, professional competence or physical or mental health of the person. La. Rev. Stat. Ann. § 42:17(A)(1). See also Op. Att'y Gen. 94-561 (La. State Board of Certified Social Work examining must hold disciplinary hearings in public).

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3. Dismissal, considering dismissal of public employees

Generally not exempt. May be closed only if discussing the character, professional competence or physical or mental health of the person. La. Rev. Stat. Ann. § 42:17(A)(1).

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O. Real estate negotiations

Not exempted.

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P. Security, national and/or state, of buildings, personnel or other

A public body may hold an executive session to discuss a report, development or course of action regarding security personnel, plans, or devices. La. Rev. Stat. Ann. § 42:17(A)(3).

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Q. Students, discussions on individual students

May be closed unless student requests that meeting be open. La. Rev. Stat. Ann. § 42:17(A)(7).

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IV. Procedure for asserting right of access

A. When to challenge

1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

Not specified.

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2. When barred from attending

Actions to enforce the Open Meeting Law should be filed as promptly as possible after an alleged violation occurs.

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3. To set aside decision

Suits to void actions must be brought within sixty days of such action. La. Rev. Stat. Ann. § 42:24. For obvious reasons, however, other action to enforce the Open Meeting Law should be filed as promptly as possible after an alleged violation occurs.

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4. For ruling on future meetings

Not specified.

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5. Other

B. How to start

1. Where to ask for ruling

a. Administrative forum

Not provided for in the Open Meeting Law.

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b. State attorney general

"The Attorney General shall enforce the provisions of the [Open Meeting Law] throughout the state. He may institute enforcement proceedings on his own initiative and shall institute such proceedings upon a complaint filed with him by any person, unless written reasons are given as to why the suit should not be filed." La. Rev. Stat. Ann. § 42:25(A) Each district attorney also is required to enforce the Open Meeting Law throughout the judicial district within which he serves. La. Rev. Stat. Ann. § 42:25(B).

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1. Applicable time limits

2. Contents of request

3. How long should you wait for a response?

c. Court

Court review is available but there are no administrative remedies.

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2. Applicable time limits

Not specified except suits to void actions must be brought within 60 days of such action. La. Rev. Stat. Ann. § 42:24; Sandi's II, Itc. v. Assumption Parish Police Jury, 837 So. 2d 124 (La. App. 1st Cir. 2002) (dismissal of Open Meeting Law claims correct because brought beyond 60-day period). For obvious reasons, however, action to enforce the Open Meeting Law should be filed as promptly as possible after an alleged violation occurs.

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3. Contents of request for ruling

No specified pleading format.

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4. How long should you wait for a response

Not later than 60 days if you want to void action taken by public body meeting in violation of the Open Meeting Law. La. Rev. Stat. Ann. § 42:24.

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5. Are subsequent or concurrent measures (formal or informal) available?

Any person may file a complaint with the state Attorney General or the district attorney, each of whom must institute enforcement proceedings unless written reasons are given as to why the suit should not be filed. La. Rev. Stat. Ann. § 42:25.

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C. Court review of administrative decision

1. Who may sue?

Any person who has been denied any right conferred by the Open Meeting Law or who has reason to believe that the law has been violated. La. Rev. Stat. Ann. § 42:25(C).

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2. Will the court give priority to the pleading?

Yes. "Enforcement proceedings shall be tried by preference and in summary manner. Any appellate court to which the proceeding is brought shall place it on its preferential docket, shall hear it without delay, and shall render a discussion as soon as practicable." La. Rev. Stat. Ann. § 42:27(B).

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3. Pro se possibility, advisability

As with any lawsuit, it is possible but probably not advisable to proceed pro se. Louisiana courts are unaccustomed to litigation conducted by pro se plaintiffs. The litigant's lack of familiarity with court rules and procedures may increase the risk of waiving or failing to assert properly the right of access to meetings.

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4. What issues will the court address?

a. Open the meeting

Yes; writ of mandamus or injunctive relief is available. La. Rev. Stat. Ann. § 42:26.

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b. Invalidate the decision

Yes, if suit is brought within 60 days of the action and the public body did not subsequently ratify the action at a meeting that fully complied with the Open Meeting Law. La. Rev. Stat. Ann. § 42:24; Marien v. Rapides Parish Police Jury, 717 So. 2d 1187 (La. App. 3rd Cir.), writ denied, 709 So. 2d 745 (La. 1998) (ratification can cure a violation of the Open Meeting Law); Delta Development Co. Inc. v. Plaquemines Parish Comm'n Council, 451 So. 2d 134 (La. App. 4th Cir.), writ denied, 456 So. 2d 172 (La. 1984) (court declined to void a resolution authorizing a lawsuit because the public body subsequently ratified the resolution in an open meeting where there was full discussion of the resolution); Brown v. Bd. of Trustees-Mun. Police Employees' Ret. Sys., 234 So.3d 260 (La.App. 1st Cir. 2017) (failure of board to provide retired police officer with notice of hearing at which board reduced officer's retirement benefits violated Open Meetings Law and rendered decision null and void); Jackson v. Bd. of Commr’s of HANO, 514 So.2d 628 (La.App. 4th Cir. 1987) (employment contract awarded by housing authority in violation of Open Meetings Law void).

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c. Order future meetings open

Yes; injunctive relief is available "to prevent noncompliance with" the Open Meeting Law. La. Rev. Stat. Ann. § 42:26.

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5. Pleading format

Not specified in the Statute.

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6. Time limit for filing suit

Not specified except suits to void actions must be brought within 60 days of such action. La. Rev. Stat. Ann. § 42:24. Greenmon v. City of Bossier City, 65 So.3d 1263, (La. 7/1/11); Hoffpauir v. State Dept. of Public Safety and Corrections, 762 So. 2d 1219 (La. App. 1st Cir.), writ denied, 772 So. 2d. 652 (La. 2000). (Sixty day time limit is preemptive, not prescriptive, and may not be interrupted or suspended). For obvious reasons, however, an action to enforce the Open Meeting Law should be filed as promptly as possible after an alleged violation occurs.

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7. What court

The district court for the parish in which the meeting took place or will take place. La. Rev. Stat. Ann. § 42:27(A).

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8. Judicial remedies available

Writ of mandamus, injunctive relief, declaratory relief, judgment rendering action void. La. Rev. Stat. Ann. § 42:26(A). See also Twin Parish Port Comm'n v. Berry Bros. Inc., 650 So. 2d 748 (La. 1995). (District Court finding that an ordinance was adopted in violation of the Open Meeting Law renders the action null and void, not unconstitutional, and does not trigger immediate Louisiana Supreme Court review).

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9. Availability of court costs and attorney's fees

The party who brings enforcement proceedings and prevails shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may award him reasonable attorney fees or an appropriate portion thereof. If the court finds that the proceeding was of a frivolous nature and was brought with no substantial justification, it may award reasonable attorney fees to the prevailing party. La. Rev. Stat. Ann. § 42:26(C); See Shirley v. Beauregard Parish Sch. Bd., 615 So. 2d 17 (La. App. 3d Cir. 1993) (awarding attorney fees where plaintiff partially successful).

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10. Fines

Any member of a public body who "knowingly and willfully" participates in a meeting that violates the Open Meeting Law shall be personally liable for a civil penalty of up to $100 per violation. Suit must be instituted within sixty days of the violation. La. Rev. Stat. Ann. § 42:13.

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11. Other penalties

D. Appealing initial court decisions

1. Appeal routes

The appeal route is to the state intermediate appellate court for the circuit where the district court is located, then, upon application for writ of certiorari, to the Louisiana Supreme Court. See also Twin Parish Port Comm'n v. Berry Bros. Inc., 650 So. 2d 748 (La. 1995) (District Court finding that an ordinance was adopted in violation of the Open Meeting Law renders the action null and void, not unconstitutional, and does not trigger immediate Louisiana Supreme Court review).

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2. Time limits for filing appeals

Within 60 days following expiration of new trial period or denial of new trial.

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3. Contact of interested amici

The Louisiana Press Association is keenly interested in enforcement of the Open Meeting Law. Address: 404 Europe St., Baton Rouge, Louisiana 70802. Telephone number: (225) 344-9309. Will Chapman is executive director and Mike Rood is general manager. The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state's highest court.

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V. Asserting a right to comment

A. Is there a right to participate in public meetings?

Yes. Each public body conducting an open meeting must provide an opportunity for public comment at the meeting, subject to reasonable rules, regulations, and restrictions. La. Rev. Stat. Ann. § 42:14(D). School board public meetings have more stringent comment requirements under La. Rev. Stat. Ann. § 42:15, which requires the opportunity for public comment prior to taking any vote. Nevertheless, the statute states that the provisions of the Open Meeting Law "shall not prohibit the removal of any person or persons who willfully disrupt a meeting to the extent that orderly conduct of the meeting is seriously compromised." La. Rev. Stat. Ann. § 42:17(c).

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B. Must a commenter give notice of intentions to comment?

Only as may be specified by a public body's reasonable rules and regulations.

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C. Can a public body limit comment?

Only as may be specified by a public body's reasonable rules and regulations and to prevent "willful disruption" that would "seriously compromise" the "orderly conduct" of a meeting.

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D. How can a participant assert rights to comment?

In conformity with a public body's reasonable rules and regulations.

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E. Are there sanctions for unapproved comment?

As noted above, the Open Meeting Law now provides for removal of persons who "wilfully disrupt" a meeting and by doing so "seriously compromise" the orderly conduct of the meeting.

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Appendix