Capital City Press v. Metro. CouncilCapital City Press v. Metro. Council
Dawn N. Guillot, Michael Elven Ponder, Baton Rouge, for respondent.
Larry Michael Roedel, John Dunbar Koch, David Alva Woolridge, Jr., Baton Rouge, for amicus curiae Louisiana Press Association.
VICTORY, Justice.
We granted this writ to determine whether the applications and resumes of applicants for the position of Assistant Director of Aviation of the Greater Baton Rouge Metropolitan Airport Authority are accessible by the press under Louisiana law. After reviewing the record, we hold that such applications and resumes are accessible.
After placing a notice in newspapers throughout the state advertising the positions of Director of Aviation and Assistant Director of Aviation of the Greater Baton Rouge Metropolitan Airport Authority, the East Baton Rouge Parish Metropolitan Council (the “Metro Council“) received 118 resumes for these positions. Eleven of these applications were for the position of Assistant Director only, the other 107 were for both Director and Assistant Director. Mike Dunne, a reporter for the Baton Rouge Advocate newspaper, requested access to the following records: (1) all documents related to those applying for the positions of Director of Aviation or Assistant Director of Aviation; and (2) any lists created by Don Nijoka, the Metro Council‘s chief administrative officer, or his staff listing the names, addresses and any other information concerning applications for those positions.
On April 18, 1995, the Metro Council responded that it would produce all resumes of those selected as finalists, and, as to the remaining applicants, it would produce the resumes of the applicants who gave their consent to the disclosure. On April 19, 1995, the Metro Council chose the then-Assistant Director to fill the position of Director, leaving only the position of Assistant Director to be filled. After attempting to contact the remaining applicants to get their permission to disclose the requested information, the Metro Council provided Dunne with the names and resumes of all applicants who had given their permission, resulting in the disclosure of 85 of the 118 resumes submitted.
Mike Dunne and Capital City Press, publisher of the Baton Rouge Advocate, then filed a petition for injunction or writ of mandamus pursuant to the Public Records Law,
Plaintiffs appealed and the first circuit court of appeal affirmed. Capital City Press and Mike Dunne v. The East Baton Rouge Metropolitan Council, et al., 95-CA-1345 (La.App. 1st Cir. 6/28/96), 676 So.2d 793.
DISCUSSION
Disclosure of applications for employment
Under Louisiana law, any person of the age of majority may inspect, copy or reproduce or obtain a reproduction of a public record “except as otherwise provided in this Chapter or as otherwise specifically provided by law.”
With regard to
The right of the public to have access to the public records is a fundamental right, and is guaranteed by the constitution.
La. Const. art. 12, § 3 . The provision of the constitution must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Id. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public‘s right to see. To allow otherwise would be an improper and arbitrary restriction on the public‘s constitutional rights. (Emphasis added.)
Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984). Similarly, with regard to the statutory right of the public to examine public documents, we held:
The legislature by the public records statutes sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. There was no intent on the part of the legislature to qualify, in any way, the right of access. [Cites omitted.] As with the constitutional provision, the statute should be construed liberally, and any doubt must be resolved in favor of the right of access.
Id. at 936-937; see also Dutton v. Guste, 395 So.2d 683 (La.1981).
There is no dispute that the applications for the positions of Director and Assistant Director are “public records” under
Accordingly, under
The court of appeal applied the balancing test set forth in Gannett, supra, in considering whether the resumes of the applicants for Assistant Director should be disclosed. In Gannett, the press sought all records held by the mayor of Shreveport relating to applicants for the position of chief of the Shreveport Fire Department. The court first determined whether the applicants had a reasonable expectation of privacy in the documents requested. The court found that the applicants had a subjectively reasonable expectation of privacy because the “applicant‘s security in his current position will be undermined if the fact that he seeks a position elsewhere is known to his current employer.” 557 So.2d at 1159. Likewise, the city had an interest in keeping the applications private because the pool of applicants would be reduced if the potential applicants were aware that the applications would be made public. Id.
After finding that there was a “significant privacy interest in the record sought,” the court balanced the privacy interest against the public disclosure interest. Id. The court found that because “[e]xpectations of privacy diminish the higher one progresses or aspires in the hierarchy of government” and because the job of fire chief was an important job, as opposed to a mid-level job, “[a]ny expectation of privacy which the instant applicants may have had in their applications was not objectively reasonable under the circumstances” and “must yield to the public‘s ‘right to know.‘” Id.
In the case at bar, the court of appeal found that the applicants for Assistant Director had a reasonable expectation of privacy for the same reasons found in Gannett, e.g. present employment security and need for large pool of applicants. However, the court found that because the job of Assistant Director was subordinate to the Director, had lesser responsibility and involved no independent judgment or individual discretion, “it does not involve such high level authority and policy making activities by the individual that his or her expectation of privacy is outweighed by the public‘s interest in access to applications for this position.” 676 So.2d at 798.
However, for the reasons that follow, we hold that a balancing test is not appropriate under these circumstances. Both the constitutional and statutory right of access to public records provide that this right can only be denied “in cases established by law” and “as otherwise provided in this Chapter or as
We also must consider the applicant‘s privacy concerns to determine whether they rise to the level of rights that are constitutionally protected. The right to privacy in Louisiana has been described as “the right to be ‘let alone,’ ... and to be free from ‘unnecessary public scrutiny.‘” DeSalvo v. State, 624 So.2d 897, 901 (La.1993) (cites omitted). We have discussed the right to privacy in the context of disclosure of facts about an individual or his property on several occasions. In Parish Nat. Bank v. Lane, 397 So.2d 1282, 1286 (La.1981), we described the right of privacy in this context as follows:
The right of privacy protects varied interests from invasion. Among the interests protected is the individual‘s right to be free from unreasonable intrusion into his seclusion or solitude, or into his private affairs.... However, the right to privacy, like other personal rights, may be lost in many ways—by express or implied waiver or consent, or by a course of conduct which prevents its assertion. Moreover, the right is not absolute; it is qualified by the rights of others....
The right of privacy is also limited by society‘s right to be informed about legitimate subjects of public interest. Individuals involved in civil litigation may be compelled to give evidence which tends to embarrass them or to produce documents of a confidential nature. A debtor‘s right of privacy is subject to the creditors’ right to take reasonable steps to collect his debt. The creditor‘s actions may result in some invasion of the debtor‘s privacy, but the debtor will be held to have a cause of action only if the steps taken are unreasonable and oppressive, or expose the debtor to public disgrace.
See also Plaquemines Parish Com‘n Council v. Delta Development Co., Inc., 472 So.2d 560, 567 (La.1985). Further, we held that “[w]here a defendant‘s action is properly authorized or justified by circumstance, it may be found reasonable and nonactionable even though it amounts to a slight invasion of the plaintiff‘s privacy.” Id. (citing Pitcher v. Iberia Parish School Board, 280 So.2d 603 (La. App. 3d Cir.), writ denied, 283 So.2d 496 (La.1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 109 (1974)).
In addition,
A resume is generally not something containing facts that would cause the “expose the [applicant] to public disgrace,” nor would its disclosure constitute an unreasonable invasion into a person‘s seclusion, solitude, or private life. The applicant‘s subjective desire for confidentiality in this instance is not in the contents of the resume, but in the fact that he has submitted a resume. If a resume or application contains facts which would expose the applicant to public disgrace, are clearly private in nature, or are protected by law from disclosure, then that resume or application, or the private matters contained therein, may not be disclosable depending on the circumstances. However, in general, an applicant for public employment in Louisiana has no reason to expect that his or her application will be kept private. Further, in light of this state‘s expansive and constitutionally protected guarantee of public access to public documents, to be denied only where a law specifically and unequivocally provides otherwise, it is clear that Louisiana citizens have not yet chosen through their legislature to recognize a general right of privacy in an application for public employment. Accordingly, there is no need to balance conflicting constitutional rights, because there is no right to privacy in this case.
Yet, the federal government and at least 34 states have enacted statutes that would prohibit such applications from being disclosed, either outright or that would allow for a balancing test to determine whether disclosure would constitute a clearly unwarranted invasion of privacy.5 The Louisiana legislature,
Attorney Fees
The lower courts did not award plaintiffs attorney fees because the plaintiffs only prevailed in part. Under
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 attorney‘s fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney‘s fees or an appropriate portion thereof.
Today we have decided that plaintiffs have the right to inspect all resumes submitted for the position of Assistant Director. Because plaintiffs have prevailed, they are entitled to reasonable attorney‘s fees and other costs of litigation.
DECREE
For the reasons stated herein, the judgment of the court of appeal is reversed and judgment is rendered ordering defendants to release all applications for the position of Assistant Director of the East Baton Rouge Metropolitan Airport Authority. Defendants may delete or strike from the applications any information that is specifically excluded by law. The case is remanded to the trial court for a determination of reasonable attorney fees and costs.
REVERSED AND REMANDED.
JOHNSON, J., not on panel.
NOTES
Notes
Notes
“Public record” is defined as follows:
All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, 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, are “public records,” except as otherwise provided in this Chapter or as otherwise specifically provided by law.
See
There is no evidence in the record of an established custom of not producing applications for public employment.
The Constitutional Convention discussion of
MR. JENKINS:
Mr. Chairman, delegates, this is to create the presumption that public meeting and public records are open to the public unless a specific law denies access to them. This won‘t change any of our statutes. Our statutes presently spell out which cases are denied, and really the relevance of this is to say that in cases where there is no law on the subject that if there has not been a specific denial of the right to public access, then access would be allowed either to the meeting or the public document involved. So, I urge the adoption of this section.
Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts, Vol. IX, p. 3072-3073 (Jan. 3, 1974).
Under the federal Freedom of Information Act, “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” are exempt from disclosure.
In Core v. United States Postal Service, 730 F.2d 946 (4th Cir. 1984), the court held that the exception found in
Like the federal government, most states have exemptions in their public record laws that exempt personal information that if disclosed would constitute an unwarranted invasion of privacy. Other state statutes contain an outright exemption for employment applications. See