_]/Thе Innocence Project of New Orleans, a non-profit law firm which seeks to exonerate wrongfully convicted persons, submitted a public records request to the New Orleans Police Department through its records custodian, Superintendent Roñal Serpas. The records sought by the Innocence Project pertained to the police investigation and arrest of Bennie Brown, whose felony conviction became final in 1993. Superintendent Serpas, however, did not respond to this request within the statutorily-required three-day period. Following the informal, but documented efforts of the Innocence Project to obtain compliance over the next several months, including a threat to institute future legal proceedings, an assistant city attorney finally informed the Innocence Project by letter that Superintendent Serpas would not produce the records because the superintendent claimed that the records sought were statutorily exempt from production.
The Innocence Project then filed a petition for a writ of mandamus, which also sought attorney’s fees, the costs of litigation, and statutory penalties for Superintendent Serpas’ аrbitrary, capricious, and unreasonable failure to timely |2respond to their public records request. After a hearing on the writ at which the superintendent qua custodian did not testify, the trial judge made the writ peremptory, ordering production of the public records. As the
Superintendent Serpas reports that he furnished the public records as ordered by the trial court’s judgment, and does not appeal the issuance of the writ of mandamus. He does appeal the awards granted by the trial court. He does not appeal, however, the amounts of the attorneys’ fees, costs, and penalties. In brief, the Innocence Project also requests that we assess additional sums against the superintendent for filing a frivolous appeal.
Upon our de novo review of the trial court’s awards for costs of litigation and attorneys’ fees, we find that such awards were correctly rendered to the Innocence Project as the prevailing party. We have also reviewed the trial court’s award of penalties under an abuse-of-discretion standard, and find that the trial judge did not abuse his discretion in awarding penalties against the superintendent for his unexplained disregard of the statutory delays in notifying the Innocence Project of the basis of his refusal to produce the requested records. In light of the purposes and оbjectives of Public Records Law, such unexplained disregard is arbitrary, capricious, and unreasonable; and is deserving of sanctioning by the judiciary.
|sWe do not consider the merits of the Innocence Project’s request for additional sanctions stemming from the filing of what it characterizes as a frivolous appeal by the superintendent because the Innocence Project did not аnswer the superintendent’s appeal as required by La. C.C.P. art. 2133.
We explain our decision in greater detail below.
I
We begin our explanation with the reminder that the fundamental law of our state guarantees the right to “examine public documents.” La. Const, art. XII, § 3. The right to examine such documents may only be denied “in cases established by law.” Id. “Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.” La. R.S. 44:31 A. Here, the custodian of the records of the New Orleans Police Department is Superintendent Serpas.
Because it is essential to the operation of democratic government that the people are aware of all exceptions, exemptions or limitations to the laws pertaining to public records, any such bаrrier to access not provided for in the Public Records Law itself or the state constitution is without effect. See La. R.S. 44:4.1 A. “The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.” La. R.S. 44:31 B(3) (emphasis added).
Ordinarily, if the public record is immediately available, it shall be produced immediately; if it is not available because it is in active use at the time of the request, then the custodian is required to make it available for the full exercise of |4the requester’s right under Public Records Law within three days, exclusive of Saturdays, Sundays, and legal public holidays. See La. R.S. 44:33 B(l). If a custodian challenges whether the requested material is a public record, the custodian shall also within that same three day period of the receipt of the request, exclusive of Saturdays, Sundays, and legal public holidays, “notify in writing the person making such request of his determination and the reasons therefor.” La. R.S. 44:32 D (empha
Here, the custodian, Superintendent Serpas, did not aсt within the three-day statutory period with respect to the public records request. He neither produced the records, nor notified the Innocence Project of his basis in law for not producing the records.
If the requester has been denied the right to inspect or copy a record “by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date оf his request without receiving a final determination in writing by the custodian,” the requester may institute proceedings for the issuance of a writ of mandamus, along with the award of attorney’s fees, costs, and damages. La. R.S. 44:35 A; see also La. C.C.P. art. 3863 (“writ of mandamus may be directed to a public official to compel the performance of a ministerial duty required by law”).
|BNotably, at the summary hearing on the petition fоr the writ of mandamus, “the burden is on the custodian to sustain his action.” La. R.S. 44:35 B. The trial judge determines the matter de novo, that is, without any deference to the custodian’s decision or the basis for that decision. See id. If the court finds that the custodian improperly withheld public records from the requester seeking disclosure, the court shall make the writ of mandamus peremptory. See La. C.C.P. art. 3866; see also La. R.S. 44:35 B.
The requester who prevails in such a suit “shall be awarded reasonable attorney’s fees and other costs of litigation.” La. R.S. 44:35 D (emphasis added).
Here, the trial judge awarded attorney’s fees and the costs of litigation to the Innocence Project as the prevailing party. He also imposed a civil penalty of $5,000. Superintendent Serpas does not challenge the amount of the fees, costs, and penalties. He challenges the awards themselves. In Part II, we consider the award of attorney’s fees and the costs of litigation. We will address the award of civil penalties in Part III.
JiP
In its written request, the Innocence Project sought to inspect and copy all of the police department’s documents and material regarding the department’s investigation and arrest of Bennie Brown for February 10, 1991 burglary and aggravated rape charges assigned NOPD item number B-13855-91. In its written request, but without any obligation on its part, the Innocence Project informed the
Ultimately, the writ of mandamus was made peremptory, and the requested records were produced.
Superintendent Serpas now argues that he acted in “good faith” in refusing to produce the public records, and, on that account, should not be assessed attorney’s fees and the costs of litigation.
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We now turn to consider Superintendent Serpas’ complaint regarding the imposition of civil penalties upon him. If a trial court finds that the custodian unreasonably or arbitrarily failed to respond to a public records request within the three-. day statutory period, “it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays
A
On November 20, 2012, the Innocence Prоject submitted its written public records request. Having received no response whatsoever to its request from the custodian of the records, the Innocence Project, without any obligation on its part, left messages via telephone on January 22, 2013, and February 4, 2013. Again, there was no response. The Innocence Project next emailed a copy of the request on February 4, 2013. Still reсeiving no response, the Innocence Project, again, without any obligation on its part, directly contacted the city attorney’s office by letter on February 13, 2013.
Finally, on February 18, 2013, sixty-five days after receiving the public records request, an assistant city attorney for the City of New Orleans, apparently |9on behalf of the custodian, informed the Innocence Project for the first time in writing that “the records requested will not be made available for your review” with the exception of the initial police report under that item number. The written notification identified La. R.S. 44:3 A(l) as the basis for the contention that the requested records were exempt, but actually quoted La. R.S. 44:3 A(4)(a). Based upon the custodian’s argument in the trial court along with his written argument before us, we understand that the custodian admitted that the requested records would be public and producible under La. R.S. 44:3 A(l) in accordance with the Louisiana Supreme Court’s decision in Lemmon v. Connick,
Section 3 of Public Records Law exempts certain types of records of police departments from disclosure. See La. R.S. 44:3 A. One exemption from disclosure protects “[t]he records of thе arrest of a person, other than the report of the officer or officers investigating a complaint, until a final judgment of conviction or the acceptance of a plea of guilty by a court of competent jurisdiction.” La. R.S. 44:3 A(4)(a) (emphasis added). “However, the initial report of the officer or officers investigating a complaint, but not ... any follow-up or subsequent report or investigation, ... shall be а public record.” Id.
Superintendent Serpas’ then-argument, it seems, was that police reports which supplemented an initial investigative report remained exempt from disclosure, even in cases such as this one where there was a final judgment of conviction. In support of his argument, the superintendent relied upon two of our Indecisions which concerned whether a defendant in аn ongoing prosecution was entitled to a supplemental police report as a public record.
Superintendent Serpas’ then-argument did not seem to consider that “whenever there is any 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 of access.” Landis v. Moreau, 00-1157, p. 4 (La.2/21/01),
B
The trigger for a discretionary award of civil penalties is the failure of the custodian to properly respond to a requester within the three-day statutory period. The trial judge must also find that the custodian’s failure to respond to the requester was unreasonable or arbitrary. See La. R.S. 44:35 E(l); see also Dwyer v. Early, 02-1545 at p. 3,
A custodian is personally liable for the payment of a civil penalty. See La. R.S. 44:35 E(2). Clearly, this is to discourage public records custodians from ignoring a request, thereby forcing a requester to engage in costly and time-consuming litigation when the production of public records is designed to be swift and economical.
The penalties may not exceed “one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to |12give notification.” La. R.S. 44:35 E(l). There were at least fifty qualifying days between the receipt of the request and the date on which the custodian, through the assistant city attorney, gave notification of the basis for his refusal to produce the public records. Thus, the amount of the penalties does not exceed that which is allowable by law.
The superintendent complains that the trial judge did not give written reasons explaining his decision. But written reasons for judgment are not required unless requested by party not later than ten days after the mailing of notice of judgment, see La. C.C.P. art.1917, and Superintendent Serpas did not make such a request.
IY
We now briefly address why we cannot consider the Innocence Project’s argument in brief that Superintendent Serpas’ appeal is frivolous and, on that account, we ought to award damages. Because the Innocence Project did not answer the appeal of Superintendent Serpas, we have no jurisdiction tо determine whether his appeal is frivolous and deserving of sanctioning.
We “may award damages, including attorney fees, for frivolous appeal.” La. C.C.P. art. 2164. “Although La. C.C.P. art. 2164 provides for damages for frivolous appeals, such damages are not proper where the party does not appeal or answer the appeal pursuant to La. C.C.P. art. 2133.” Legaux v. Orleans Levee Bd., 99-2453, p. 5-6 (La.App. 4 Cir. 5/17/00),
CONCLUSION
The trial judge was legally correct in awarding аttorney’s fees and the costs of litigation to the Innocence Project as a requester who prevailed in the suit. The trial judge did not abuse his discretion in imposing civil penalties in the amount of $5,000 upon the custodian. The Innocence Project is procedurally barred from seeking damages for a frivolous appeal because it did not answer the custodian’s appeal.
DECREE
The April 10, 2013 judgment in favor of the Innocence Project of New Orleans, and against Roñal Serpas is affirmed in all respects. Roñal Serpas is taxed with all costs of this appeal. See La. C.C.P. art. 2164.
AFFIRMED.
Notes
. In die event that any record contains material which is not a public record, the custodian may separate the nonpublic record, and still make the public record available. See La. R.S. 44:32 B.
. This subsection also provides diat, if the requester only prevails in part, "the court may in its discretion award him reаsonable attorney's fees or an appropriate portion thereof.” (emphasis added).
.This subsection also provides for the discretionary award of actual damages under certain circumstances. Here, the Innocence Project did not claim any actual damages.
. Lemmon v. Connick expressly disapproved of our inconsistent holding in Bizal v. Connick,
. After the trial judge ordered the records produced, the custodian’s counsel requested for the first time that they be redacted with respect to the certain private information concerning the victim. The Innocence Project agreed to the in camera inspection and determination by the trial judge.
. The attorney's fee award was $3,000 and the costs of litigation award was $607. As we have mentioned, there was no objection to the amounts. Thus, we need not evaluate them.
. Superintendent Serpas did not argue to the trial court that his "good faith" relieved him of the obligation of paying the attorney’s fees and the costs of litigation.
. The decisions were State v. Burnes,