196 So. 3d 90
La. Ct. App.2016Background
- Tom Aswell submitted four public-records requests to the Louisiana Division of Administration (DOA) between Oct–Nov 2014: (1) travel/lodging/meal expenses for OGB interim deputy director Bill Guerra; (2) RFP, proposals, rankings, recommendation and contract for pharmacy benefit manager (MedImpact); (3) documents re: retention/destruction of OGB records; (4) an email about consultant recommendations.
- DOA initially responded to request 1 (Oct 13, 2014) stating it had no responsive records; responsive travel records existed and were later produced (Jan 23, 2015).
- For requests 2–4, DOA acknowledged receipt, said it was reviewing for exemptions and estimated dates for production; the requested materials were voluminous and were ultimately produced (request 4 produced Dec 2, 2014; others produced Jan 23, 2015).
- Aswell sued under the Louisiana Public Records Law seeking injunctive relief, statutory penalties, attorney fees and costs; after pleadings and stipulations the trial court found a violation only as to request 1, awarded one-fourth of Aswell’s attorney fees and costs, and imposed an $800 civil penalty against DOA and Commissioner Nichols.
- DOA appealed as to liability/penalty/fees; Aswell answered the appeal seeking reversal on the other requests and fees for the appeal. The appellate court affirmed liability/fees for request 1, reversed the $800 penalty, and awarded Aswell $1,800 additional appellate attorney fees; other rulings were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOA arbitrarily and capriciously withheld records for request 1 | Aswell: DOA had responsive records (CEO-approved travel expense on Oct 10) and wrongly said none existed on Oct 13 | DOA: Records were not finalized/approved by OFSS until Oct 20, so none were in its possession when it responded | Court: DOA acted arbitrarily and capriciously; records existed and DOA's Oct 13 response was misleading — liability for withholding affirmed |
| Entitlement to attorney fees for prevailing in part | Aswell: Producing records only after suit means he prevailed and is entitled to fees/costs under La. R.S. 44:35(D) | DOA: Because records were produced before hearing, Aswell did not “prevail” and is not entitled to fees | Court: Aswell prevailed in part by filing suit and is entitled to a discretionary award; one‑fourth of fees awarded at trial was upheld |
| Appropriateness of $800 civil penalty for request 1 | Aswell: sought penalties for arbitrary/unreasonable response | DOA: timely responded within statutory three‑day period so penalties inappropriate | Court: DOA’s response was misleading but it timely responded under La. R.S. 44:32, so statutory civil penalties (which require failure to respond) reversed |
| Whether DOA violated public‑records law for requests 2–4 (delays/withholding) | Aswell: DOA unreasonably delayed/withheld voluminous records and trial court erred in dismissing these claims | DOA: Timely acknowledged, reviewed for exemptions, gave reasonable time estimates, and produced records; delays attributable to volume and review | Court: No manifest error — DOA did not arbitrarily withhold or unreasonably fail to respond for requests 2–4; trial court dismissal affirmed |
Key Cases Cited
- Toups v. City of Shreveport, 60 So.3d 1215 (La. 2011) (definition and standard for "arbitrary and capricious")
- Calcasieu League for Environmental Action Now v. Thompson, 661 So.2d 143 (La. App. 1st Cir. 1995) (test whether action was taken "without reason")
- Matter of Recovery I, Inc., 635 So.2d 690 (La. App. 1st Cir. 1994) (discussion of arbitrary and capricious standard)
- Innocence Project New Orleans v. New Orleans Police Dept., 129 So.3d 668 (La. App. 4th Cir. 2013) (public‑records enforcement and standards for penalties/withholding)
- Capital City Press, L.L.C. v. Louisiana State Univ. Sys. Bd. of Sup’rs, 168 So.3d 727 (La. App. 1st Cir. 2014) (distinguishing damages and civil penalties under La. R.S. 44:35)
- Genusa v. Dominique, 708 So.2d 784 (La. App. 1st Cir. 1998) (awarding additional attorney fees for successful defense on appeal)