SADOW: Make Better Case for Louisiana Public Records Reform

In an unfortunate case of throwing out the baby with the bathwater, some desirable changes to Louisiana public records laws face deferral due to adverse, if not in some ways undeserved, critiques of them.

Several bills addressing the subject the Legislature perused this session. Among them, SB 423 by Republican state Sen. Jay Morris originally would have limited records requests to Louisianans; SB 482 by GOP state Sen. Heather Cloud would shield the governor’s and his family’s schedule if safety is a concern and would exempt advisory and deliberative communications; and SB 502 by Republican state Sen. Blake Miguez would require that an actual Louisiana citizen be verified as making a request. A later iteration of SB 423 essentially would have combined these elements.

It’s important to note that in terms of breadth, Louisiana has one of the most comprehensive and far-reaching open records laws among the states. Many restrict coverage to certain branches or levels while Louisiana shields only parts for each. Often these restrictions go much further than Louisiana’s; for example, a number of states exempt the advisory and deliberative processes. That, in fact, is the approach taken for the most part by the federal government and most recently was strengthened by the U.S. Supreme Court.

So, while these laws would weaken access to public records, in a comparative perspective they wouldn’t make the state a closed-off outlier among its brethren but more likely push it to the modal category. And there is justification for why these might contribute to better policy-making.

Aside from security concerns, exempting advisory and deliberative products adheres to the rationale that the federal judiciary has articulated, that the policy-maker receives more candid advice that might lead to better policy but which may have negative public opinion optics attached to it prior to implementation that discourages rendering of that advice if its revelation to the public is possible. These bills also address perversion of the intent of the laws, through the weaponization of the public records process, where adversaries to the ideological agenda of those in power flood that agency with requests as a means of gumming up the works; by limiting requests to verified persons either state residents or property owners – which isn’t unreasonable since state taxpayers must foot the bill for requests if requestors aren’t charged – that prevents automated and minimizes frivolous attacks.

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These aren’t unreasonable objectives (indeed, GOP Gov. Jeff Landry, when he was the attorney general, endured a weaponization attack some years ago) but a fine line must be walked between the process reducing the quality of governance and ensuring that enough sunshine falls upon state and local government activities. What would have been the latest version of SB 423 actually struck a pretty good balance, with a couple of changes: more specifically defining what is advisory and deliberative and by retaining a personhood verification (which doesn’t have to go to great lengths) and for persons without a direct state connection (such as residents or property owners) observing a mandatory and much higher fee scale (which could be avoided by teaming up with state residents in the request, which would be an easy thing to do for academicians and journalists, or even the agency could waive those fees as it does for state residents if the requestor can demonstrate definitively that the information is to be used only for academic or journalistic purposes).

But that won’t happen this session, as Morris actually withdrew his bill and the others have said they don’t plan on pursuing theirs. That’s a net loss insofar as the opportunity to excise some of the less salutary aspects of Louisiana’s open records laws, which actually didn’t have touched upon their gravest defect: among the most cumbersome to enforce that only encourages deep-pocketed special interests to abuse that law.

In league with more benign interests genuinely worried about access, these entities drummed up opposition enough to sideline the reforms for now. In the future, proponents will have to make a better case about the utility of the reforms to counter a simplistic narrative that these were exercises to make governing more secretive. Until then, the imperfect process will lumber on.

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