Parish of Ascension v. Taleta WesleyParish of Ascension v. Taleta Wesley
O‘Neil J. Parenton, Jr., Gonzales, LA, Counsel for Plaintiff/Appellee, Parish of Ascension
Vercell Fiffie, Edgard, LA, Counsel for Defendant/Appellant, Taleta Wesley
BEFORE: WHIPPLE, C.J., GUIDRY, AND CRAIN1, JJ.
Guidry, J. concurs in the result. Crain, J. concurs.
In this appeal, a citizen requesting certain public records challenges the trial court‘s judgment ordering the requestor to pay the custodian of those public records a fee of $10,000.00 for the review and redaction of the requested records. For the following reasons, we reverse the assessment.
FACTS AND PROCEDURAL HISTORY
On September 12, 2018, Taleta Wesley submitted a public records request to the Parish of Ascension (“Parish“), requesting the following for the two years prior to the request: the emails of Taleta Wesley (herself), Wanda Guillera, Mandy Daigle, Kristi Anderson, and Kenny Matassa; the text messages of Kenny Matassa, Thomas Pearce, Donald Hysell, Kenneth Dawson, and Kristi Anderson; the phone log of Kenny Matassa; and “PAF‘s.”1 The following day, on September 13, 2018, Wesley submitted two additional public records requests to the Parish. In the first September 13, 2018 request, she sought the following records for the two-year period preceding the request: the emails of Thomas Pearce, Donald Hysell, Kenneth Dawson and Kenny Matassa‘s cell phone logs. In the second request that day, Wesley requested any and all emails or “personal message systems” that mentioned “Taleta, Talita, Taleda or any other variation of Taleta Wesley‘s name.”
In response to the requests, the Parish filed a Petition for Declaratory Judgment in the trial court below, naming Wesley as defendant and averring that Wesley‘s requests yielded a large number of emails and PAFs, each of which would have to be reviewed to determine whether it was subject to exemption, exception, or redaction.2 Thus, the Parish sought a declaratory
Thereafter, Wesley filed an “Exception of No Cause of Action, No Right of Action, Motion to Dismiss with Incorporated Memorandum, Answer to Petition for Declaratory Judgment with Reconventional Demand.” In the reconventional demand, in which she named the Parish and Andria Dollar, the Parish‘s custodian of public records, as defendants, Wesley contended that the custodian of records for the Parish had unreasonably and arbitrarily failed to respond to her requests. Thus, she sought writs of mandamus ordering the Parish to comply with her public records requests, as well as damages or penalties pursuant to
On December 7, 2018, the trial court conducted a hearing on the Parish‘s Petition for Declaratory Judgment and Wesley‘s exceptions and motion to dismiss. Thereafter, by order dated December 17, 2018, the court denied Wesley‘s exceptions of no cause of action and no right of action and motion to dismiss and further granted the Parish‘s Petition for Declaratory Judgment, ordering Wesley to pay the Parish $10,000.00 for the costs associated with redacting private information from the records she seeks.
From this judgment, Wesley now appeals, listing six assignments of error.4
DISCUSSION
Through her second, third, and fifth assignments of error, Wesley contends that the trial court erred: (1) in finding that the Parish had a right to institute proceedings against her, where the Public Records Law does not afford a public entity the right to bring a lawsuit to set costs for review of requested records; (2) in finding that the request was burdensome; and (3) in setting a $10,000.00 fee for the review and redaction of the requested records, thereby infringing upon her right to free and unlimited access to public records.
The public‘s right of access to public records is a fundamental right guaranteed by the Louisiana Constitution and implemented by the Public Records Law set forth in
The custodian of the record shall present it to any person of the age of majority
With regard to any fee for such review, generally, no fee may be charged. See
requested records to determine if they are subject to disclosure.5 See Roper, 244 So. 3d at 471; see also Sewell v. Benoit, 2002-1714 (La. App. 4th Cir. 2/19/03), 841 So. 2d 24, 27, writ denied, 2003-0817 (La. 5/9/03), 843 So. 2d 409.
Andria Dollar, the custodian of records for the Parish of Ascension, was the only witness to testify at the hearing on the Parish‘s petition.6 According to Dollar, a search of the Parish‘s email server by the Parish‘s information technology director yielded over 185,000 responsive emails, and approximately 3,400 PAFs responsive to Wesley‘s three September 12 and 13, 2018 public records requests. Dollar explained that because the PAFs contain personal information of Parish personnel such as social security numbers, addresses, phone numbers, and possibly financial institution information, she will have to review and possibly redact each PAF individually.
She further testified that based on her past experience responding to public records requests, she can review approximately fifty emails per hour, depending on how many attachments there are to each email, to determine if there is protected or privileged information that must be redacted. Dollar estimated that given the number of responsive documents, and based on her experience, review of the emails would take her approximately 3,700 hours, and review of the PAFS would probably take an additional ninety hours. Dollar, whose hourly rate of pay is $26.38, further testified
reviewing requested documents, and that if she spent over 3,000 hours reviewing these documents, someone else would have to perform her job duties as a paralegal.
On cross-examination, however, Dollar conceded that about seventy-five to eighty days had passed since Wesley requested these documents in her September 12 and 13, 2018 public records requests, but that Dollar had not yet begun to review any of the documents responsive to Wesley‘s requests. Rather, once the Parish‘s IT personnel found the number of responsive emails, the Parish filed this lawsuit. Dollar further acknowledged that there had been two other suits in which the Parish sought to have a fee set for the time spent by Dollar to review documents requested pursuant to public records requests, and that in only one of those two cases did the requestor ultimately receive the documents requested.7
While
other states allow for all costs associated with compliance to be recovered. See e.g.
Because the Louisiana Public Records Law establishes, as the general rule, that no fee shall be charged for review to determine if a requested record is subject to disclosure,
Moreover, while, contrary to Wesley‘s contention on appeal, the Louisiana Public Records Law clearly contemplates the right of a public body to bring a suit against a requestor, it does not expressly provide the procedure through which a custodian should request that the trial court assess a fee for such review or the time at which the custodian may judicially
841 So. 2d at 27. However, in neither Roper nor Sewell did the public body institute suit against the requestor prior to the public body providing the requestor with any initial response to the public records requests. Rather, in both of those cases, the request was made in response to litigation instituted by the requestor. See Roper, 244 So. 3d at 470 (where the request for costs was raised by reconventional demand in a suit by the public records requestor for writ of mandamus and damages), and Sewell, 841 So. 2d at 26 (wherein the trial court, in the judgment ordering the custodian of public records to provide the plaintiff with a redacted copy of the requested records, further ordered the custodian to keep time records for the redaction and to submit a bill to the plaintiff for that time, a ruling ultimately reversed by the appellate court).
Nonetheless, while the Public Records Law in this state may not be clear on the procedure for requesting the assessment of a fee for review of requested records, especially as to the timing of such a request in relation to the custodian‘s duties of providing written notice to the requestor, the law is clear on the statutory duties of the custodian to timely respond to the requestor by: (1) immediately presenting a public record that is immediately available, or, if not immediately available, certifying such to the requestor and fixing a time within three days for the exercise of the right,
In the instant case, it is also clear that the Parish did not provide any written response to Wesley. Instead, rather than respond to Wesley as set forth in
Thus, Wesley, in exercising her fundamental constitutional right of requesting public records, was named as a defendant in a lawsuit, and a judgment was rendered against her, ordering her to pay the Parish $10,000.00, before the Parish ever communicated to Wesley the length of time the Parish estimated it would take to respond to the requests given the breadth of the records revealed as potentially responsive in an IT search performed by the Parish. Additionally, the Parish never communicated to Wesley that, given the broad scope of the request, it would seek a judicial determination of a fee to be assessed, nor did it provide her with an opportunity to reduce the scope of the requests prior to any suit being filed. While
litigation.9 The chilling effect of the fear of a requestor being named as a defendant and being forced to defend against a lawsuit with no prior communication from the custodian of public records as to the breadth of the records responsive to the request, an estimate of the length of time necessary to fulfill the request, or the possibility of the governmental entity seeking reimbursement of costs for review of the records simply cannot be denied.
We are sensitive to the expenditure of time and resources by governmental entities in responding to very large or voluminous requests and to the impact this can have on the operations of government. As noted by the Third Circuit Court of Appeal in Johnson v. City of Pineville, 2008-1234 (La. App. 3rd Cir. 4/8/09), 9 So. 3d 313, 319, we live in an age of technology in which information technology has allowed governmental entities “to create astronomical numbers of documents.” However, we also further recognize that providing access to public records is a legal duty of the office of a custodian and his or her employees, and this duty requires the custodian to present any public record to any person of the age of majority who so requests, even if full production may take months.
We recognize that a trial court‘s decision in assessing a fee for the review of requested documents will not be reversed on appeal absent an abuse of discretion. Roper, 244 So. 3d at 471. Nonetheless, under the particular facts of this case, where the custodian admittedly never even reviewed any of the requested records to determine if any were immediately available and failed to respond in writing to Wesley as the requestor to
provide her with an estimate of the time needed to review and redact records, where the Parish failed to respond even despite Wesley‘s reconventional demand seeking a response, and where the trial court had previously acknowledged Wesley‘s indigent status by allowing her to proceed in this litigation without the advance payment of costs, we must conclude that the trial court abused its discretion in imposing a $10,000.00 fee against Wesley for review of the requested documents. Accordingly, we reverse that portion of the trial court‘s December 17, 2018 judgment.
Turning to Wesley‘s contention in her fourth assignment of error that the trial court erred in finding that text messages on private cell phones, created in the commission of business for the Parish, are not public records, we note at the outset that while in written reasons for judgment, the trial court stated that the Parish was not the custodian of some of the text messages and that some of the text messages were not subject to the Public Records Law, the judgment on appeal is silent as to whether any of the requested text messages are public records or whether the Parish is the custodian of such records. Moreover, as noted in footnote two supra, the Parish did not request in its Petition for Declaratory Judgment a declaration as
Finally, in her sixth assignment of error, Wesley contends that the trial court erred in failing to find that the Parish and its custodian were arbitrary and capricious in their failure to comply with her public records requests.
However, Wesley‘s reconventional demand in which she sought writs of mandamus compelling the Parish to respond to her three public records requests and damages or penalties was not tried together with the Parish‘s petition for declaratory judgment at the December 7, 2018 hearing. Accordingly, on the record before us, the trial court has yet to rule upon Wesley‘s reconventional demand, and the issues raised therein are likewise not before this court in this appeal.
CONCLUSION
For the above and foregoing reasons, the portions of the trial court‘s December 17, 2018 judgment, granting the Parish of Ascension‘s Petition for Declaratory Judgment and ordering Taleta Wesley to pay the Parish $10,000.00 for costs associated with redacting private information from the records she seeks, are hereby reversed. In all other respects, the judgment is affirmed. This matter is remanded to the trial court for further proceedings. Costs of this appeal in the amount of $3,181.96 are assessed against the Parish of Ascension.
REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.