317 So.3d 826
La. Ct. App.2021Background
- On May 7, 2015 Emily Washington requested records concerning subpoenas issued under La. Code Crim. Proc. art. 66 from the Orleans Parish District Attorney (DA).
- The DA replied (May 11, 2015) that it lacked a searchable database, then (June 24, 2015) refused as overly broad and redirected Washington to the Clerk of Court.
- Media reporting in April 2017 showed the DA circulating Article 66–style forms; Washington filed for a writ of mandamus on May 12, 2017.
- The district court initially dismissed on exceptions; this court reversed on November 7, 2018 and remanded.
- The DA produced responsive documents in June 2019. On remand the district court found the DA acted arbitrarily and capriciously, awarded civil penalties ($50/day) and attorney’s fees; the DA appealed.
- The Court of Appeal affirmed: DA’s responses were arbitrary, penalties were proper, and attorney’s fees and costs were recoverable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Did the DA act arbitrarily and capriciously in denying/withholding requested records? | Washington: DA mischaracterized documents as non-searchable "DA notifications," failed to search staff files, and misdirected request to the Clerk. | Cannizzaro: Timely responses were given; requests were overbroad and unduly burdensome; "DA notifications" differ from Article 66 subpoenas; DA attempted to cooperate and offered file review. | Court: DA acted arbitrarily and capriciously; its justifications were unreasonable and contradicted by internal use and circulation of the subpoena form. |
| 2. Does this case fall under Maldonado v. Cannizzaro precedent? | Washington: Maldonado’s facts differ materially; here the DA’s conduct (misdirection, failure to search) was worse and delayed production for years. | Cannizzaro: Maldonado shows similar handling and supports DA’s positions. | Court: Distinguished Maldonado; factual differences (timing, scope of cooperation, production delay) support finding arbitrariness here. |
| 3. Were civil penalties under La. R.S. 44:35(E)(1) appropriate and properly calculated? | Washington: Penalties proper; calculate from May 7, 2015 (request) through June 14, 2019 (production) at $50/day. | Cannizzaro: Penalties improper or should exclude periods of litigation, requester inaction, or reasonable delay while parties negotiated. | Court: Penalties appropriate; DA failed to properly respond under La. R.S. 44:32 and $50/day from request to production was within the court’s discretion. |
| 4. Are attorney’s fees and costs recoverable? | Washington: Prevailing party is entitled to reasonable fees under La. R.S. 44:35(D)(1); she prevailed on the object of the suit. | Cannizzaro: Washington was an attorney who used colleagues as counsel (no out‑of‑pocket fees), and DA’s good faith should reduce or negate fees. | Court: Fees proper; petitioner need only prevail on the object (access). Washington’s status as an attorney-colleague did not bar recovery and DA’s good‑faith argument was not controlling given the finding of arbitrariness. |
Key Cases Cited
- Shane v. Parish of Jefferson, 209 So. 3d 726 (La. 2015) (Public Records Law construed liberally to maximize public access)
- Maldonado v. Cannizzaro, 257 So. 3d 733 (La. App. 4 Cir. 2018) (discusses reasonableness of DA's responses and cooperation in subpoena records requests)
- Innocence Project New Orleans v. New Orleans Police Dep't, 129 So. 3d 668 (La. App. 4 Cir. 2013) (standards for awarding civil penalties under public records statute)
- Rosell v. ESCO, 549 So. 2d 840 (La. 1989) (manifest error standard for review of factual findings)
- Mercato Elisio, L.L.C. v. City of New Orleans, 259 So. 3d 1235 (La. App. 4 Cir. 2018) (petitioner is deemed to have prevailed if litigation secures access to requested records)