Months Of Stonewalling Have Forced Us To Sue The State Legislature

Back in March, amid the debate surrounding Gov. Jindal’s education reform plans, we at The Hayride submitted a public records request seeking e-mail communication between the leadership of the Louisiana Federation of Teachers and the Louisiana Association of Educators and four Democrat state legislators – State Reps. Pat Smith and John Bel Edwards and Sens. Karen Carter Peterson and Ben Nevers.

We submitted that request for several reasons, among them our desire to examine the extent of collaboration between the Dems and the unions on messaging against the reforms – because the rhetoric coming out of Smith, Edwards, Peterson and Nevers was virtually identical to that of LFT head Steve Monaghan and LAE chief Joyce Haynes – and our interest in examining the veracity of the oft-made claim that Jindal somehow rammed the education reforms through the legislature without anyone knowing what was in the bills.

That was in March. It is now November and the men responsible for providing public records to Louisiana citizens who exercise their constitutional rights to view them – specifically House clerk Alfred “Butch” Speer and Secretary of the Senate Glenn Koepp – have provided absolutely nothing in the way of cooperation. In fact, our communications with Speer and Koepp have been marked by a shockingly dismissive attitude on their parts which has given a classic public-sector flavor to their stonewalling.

It’s clear they determined that if they’d stonewall us long enough, the news value of the information we sought would diminish, and we would go away. For months, we endured a back-and-forth with them that was infuriating in its exposition of their banal contempt for the public.

Butch Speer and Glenn Koepp don’t know us. We won’t tuck tail and run so easily. Article 12, Section 3 of Louisiana’s Constitution specifically states “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” To be denied that right by faceless men in bureaucracies set up by representatives of the public is unacceptable.

So on Friday, Nov. 2, we sued Butch Speer and Glenn Koepp seeking a writ of mandamus to force them to provide the records.

The 19-page complaint can be viewed in full here. Some excerpts…

On or about March 29, 2012, Petitioner did cause a request for information under the Public Records Act of Louisiana, R.S. 44:1 et seq., to be propounded upon Alfred Speer, as Clerk of the Louisiana House of Representatives and custodian of the records requested, which requested certain electronic communications between Reps. John Bel Edwards and Patricia Smith and Louisiana Federation of Teachers President Steve Monaghan, Louisiana Federation of Teachers Legislative Director Mary Patricia Wray, Louisiana Association of Educators President Joyce Haynes, and Louisiana Association of Educators Executive Director Michael Walker Jones, during a certain time period of January 9, 2012 through March 29, 2012. See Exhibit “A.”

Via e-mail, Defendant Speer asserted that the records would require 81 days to “re create,” and that he would then begin review of the record “to delete all non-public records, i.e. e-mails that have nothing to do with conducting the public’s business.” See Exhibit “B.”

On information and belief, these e-mailed records are readily available using basic search functions in e-mail programs that the state utilizes such as Microsoft Outlook.

In an attempt to accommodate and cordially work with Defendant Speer, Petitioner reserved objections to so-called”non-public records” and the length of time for “re-creation.”

After a 110-day delay, records were not produced by July 16, 2012, and Petitioner once again requested the records be produced. See Exhibit “C.”

After records were again not produced by October 12, 2012, a 198-day delay, Petitioner again requested via letter that the records be produced, to no avail. See Exhibit “D.”

As of November 2, 2012, 219 days have passed since the request was first sent to Defendant Speer. This represents an unreasonable amount of time and an arbitrary and capricious delay of Petitioner’s fundamental right to review these public records.

That was the narrative of the House request made to Speer. The Senate request followed an identical path.

The justification for our seeking the writ of mandamus…

A writ of mandamus, which will “compel the performance of a ministerial duty required by law,” La. C.C.P. Art. 3863, is appropriate to compel Defendants to abide by their statutory duty as custodians to produce the records, in whole or in part, made subject of Petitioner’s request.

Petitioner, respecting both Federal and Louisiana statutes and constitutional rights, respectfully requests this Honorable Court order production of his request immediately.

It is the law of Louisiana that: “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” La. Const. Art. 12, Sec. 3.

Furthermore, “Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.” La. Rev. Stat. Ann. § 44:31.

“All persons and public bodies having custody and control of any public record,” are required by law to preserve the public record “for a period of at least three years.” La. Rev. Stat. Ann. § 44:36.

A custodian of Public Records has three days, exclusive of Saturdays, Sundays and legal public holidays, to produce public records readily available such as the e-mails at issue in this Petition. La. Rev. Stat. Ann. § 44:33.

Under the same law, any person who is denied the right to inspect or copy a record “may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.” La. Rev. Stat. Ann. § 44:35(A).

As stated in La. Rev. Stat. Ann. § 44:31(B)(3), the “burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.”

The Louisiana Supreme Court has further held that these laws should 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…. 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.” Title Research Corp. v. Rausch, 450 So. 2d 933, 936 (La. 1984).

Petitioner asserts that the e-mails requested, which consist of communications between a legislator and a non-legislator, cannot be so-called “non-public records” referred to in Defendant Speer’s confirming e-mail of March 30, 2012, and that such a classification and the withholding of such records would be a violation of Louisiana law. See Exhibit “B.”

The so-called “Legislative privilege” of the Louisiana Constitution states that “no member shall be questioned elsewhere for any speech in either house.” La. Const. Art. Ill § 8.

Petitioner acknowledges that this “Legislative privilege” has been held to protect disclosure of records which go “to the very core of the legislative process” and are “within the legitimate legislative sphere.” See Copsey v. Baer, 593 So.2d 685 (La. App. 1 Cir. 1991).

Petitioner requests declaratory relief from this Honorable Court that written communications between legislators and private lobbyists and interest groups are not privileged under La. Const. Art. Ill § 8. In fact, these records are core “public documents” for which the Louisiana Public Records Law was enacted.

Petitioner avers that Defendants have arbitrarily and capriciously withheld the requested records and have arbitrarily and unreasonably failed to respond to the request as required by La. Rev. Stat. Ann. § 44:32. Petitioner requests that this Court award actual damages and civil penalties in accordance with La. Rev. Stat. Ann. § 44:35(E).

Petitioner furthermore avers that upon judgment of this Honorable Court, he should be awarded reasonable attorneys’ fees and other costs of litigation under La. Rev. Stat. Ann. §44:35(D) (“[a prevailing petitioner] shall be awarded reasonable attorney’s fees and other costs of litigation.”)

You can read through the complaint, and particularly the exhibits included in it which detail some of the communications we received during this process, and see the flimsiness of the excuses the bureaucrats at the House and Senate have offered to us for their inability to perform the tasks assigned to them by law.

What they would have us believe is that it takes three months to go through a Microsoft Outlook-based e-mail system, sort e-mails by their senders and recipients, examine those e-mails to determine whether they involve deliberations of legislation, save them to PDF files and transmit them to those members of the public who make written requests for them.

Three months, not three hours or 10 minutes – the amount of time any one of the interns working at the state legislature could easily perform such a task. And naturally, they didn’t produce anything in three months, or six months. We passed seven months two weeks ago, when we made the decision to sue.

The initial request was a Republican-Democrat thing. The unmitigated failure of Koepp and Speer to perform their duty as custodians of the public record is neither partisan nor ideological. It’s legal and moral.

It’s an outrage. We’re confident the court – the judge in our case is Bill Morvant, who last week lost in his campaign for the Louisiana Supreme Court – will agree.

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