226 So. 3d 1211
La. Ct. App.2017Background
- On Feb 6, 2015, Michael Deshotels requested unsuppressed October 2014 multi-stat student enrollment figures from the Louisiana Dept. of Education (LDOE); the Department instead provided suppressed/averaged ranges citing FERPA compliance.
- Deshotels (through counsel) repeatedly demanded the actual figures; LDOE sent a written explanation claiming FERPA concerns on March 18 and further explanation on March 30.
- Deshotels sued under the Louisiana Public Records Act seeking mandatory injunctive relief (production), attorney’s fees, and statutory penalties ($100/day).
- After a full evidentiary hearing, the trial court ordered production, awarded fees/costs, and imposed $100/day civil penalties from Feb 16, 2015 until production.
- On appeal the Court considered (1) whether LDOE arbitrarily and capriciously withheld records and (2) whether civil penalties under La. R.S. 44:35 were proper and for what period; the court affirmed production and fees but reduced the penalty period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LDOE arbitrarily or capriciously withheld the requested unsuppressed records | Deshotels: LDOE refused prior practice of providing unsuppressed data and gave no timely legal basis; withholding was arbitrary | LDOE: suppression required by FERPA and USDOE guidance to prevent identification via combined data | Court: Trial court did not err — LDOE’s delay to provide a legal basis was unreasonable/arbitrary; production ordered |
| Whether civil penalties under La. R.S. 44:35E(1) may be imposed | Deshotels: Penalties appropriate for LDOE’s failure to timely notify with legal basis | LDOE: Response and FERPA justification defeated penalties (and appeal contested timeliness) | Court: Penalties may be imposed for failure to timely give statutorily required notification; discretionary award appropriate here |
| Proper penalty period for civil penalties | Deshotels: penalty from Feb 16 until production | LDOE: contested scope/duration; argued timely response or other defenses | Court: Penalty period was Feb 12, 2015 (first business day after statutory 3-day window) through March 17, 2015 (day before March 18 notice); amended judgment accordingly |
| Appeal timeliness / characterization of injunction | Deshotels: appeal untimely because judgment was a preliminary injunction and appeal window was 15 days | LDOE: judgment was a mandatory injunction issued after full merits hearing (effectively final) so ordinary appeal delays apply | Court: Denied motion to dismiss — mandatory injunction followed full evidentiary hearing and was treated as final for appeal purposes |
Key Cases Cited
- Landis v. Moreau, 779 So.2d 691 (La. 2001) (public records access construed liberally in favor of disclosure)
- Elliott v. District Attorney of Baton Rouge, 664 So.2d 122 (La. App. 1 Cir.) (same principle of liberal construction)
- Capital City Press, L.L.C. v. Louisiana State University System Bd. of Sup’rs, 168 So.3d 727 (La. App. 1 Cir.) (distinguishing damages vs. civil penalties under La. R.S. 44:35)
- Innocence Project New Orleans v. New Orleans Police Dept., 129 So.3d 668 (La. App. 4 Cir.) (interpretation of penalty trigger under La. R.S. 44:35)
- Revere v. Reed, 675 So.2d 292 (La. App. 1 Cir.) (civil penalties only where custodian fails to timely give statutory notice)
- Washington v. Reed, 668 So.2d 1313 (La. App. 1 Cir.) (same rule on notice and penalties)
- Aswell v. Division of Administration, 196 So.3d 90 (La. App. 1 Cir.) (discussed whether an in-period but untruthful response defeats penalties)
- Morris v. Transtates Petroleum, Inc., 246 So.2d 183 (La.) (procedural rule on interlocutory injunction appeal timing)