St.Tammany Parish Coroner VS Jane Doe

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0946 ST TAMMANY PARISH CORONER VERSUS JANE DOE Judgment rendered OCT 2 9 2010 On Appeal from the 22 Judicial District Court Parish of St Tammany State of Louisiana 2010 10501 Division G The Honorable William J Crain Judge Presiding Patrick J Berrigan D Rex English Counsel for PlaintiffAppellant St Tammany Parish Coroner Slidell Louisiana and Deborah Cunningham Foshee Covington LA Laura King Bay St Louis Mississippi Counsel for Defendant Appellee Edward Gibson BEFORE KUHN PETTIGREW JJ KLINE J CortfCgR y Q7 ve l t v I SSr arc l5 JS S e Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court i TZ F k U4 cu w a S A o p y y 2 ttotl KLINE J The St Tammany Parish Coroner appeals a judgment ordering it to produce for Laura King copies of certain documents for 10 cents per page and ordering it to produce pages of emails in an electronic format making use of Adobe software For the following reasons we amend in part and affirm as amended PERTINENT FACTS AND PROCEDURAL HISTORY This litigation arises from a public records request Ms King made to the St Tammany Parish Coroner Coroner On January 13 2010 Ms King made a public records request to the Coroner seeking copies of emails from seven persons covering the period from June 30 2008 through the date of the request She also asked for copies of all Coverdell grant records from 2007 through the date of the request The letter suggested that the records be copied onto a CD or a flash drive but stated that they could be produced as paper copies The Coroner responded on January 21 acknowledging the request The s Coroner office estimated that at least 93 pages would be produced at 25 000 cents per page for an estimated total of 23 The letter recited that if burned 250 to a disc the copies would be 50 cents per page for an estimated total of 46 500 Additionally the letter from the Coroner office stated that Ms King would be s charged overtime rates for the work for an indeterminate number of hours On January 22 2010 the Coroner filed a Petition for Declaratory Relief In the petition the Coroner stated that it could not comply with Ms King request s within three days as required by law The petition commented that overtime hours would be required to comply with the records request The petition also referenced possible privileges that the Coroner might assert The Coroner sought relief from the court allowing it more than three days to respond the records request entitling the Coroner to reasonable copying costs for paper copies at recognized rates although the defendantappellee is referred to as Jane Doe in the lawsuit caption Ms Laura Kin is the real parts in interest 2 allowing the Coroner to collect the fees in advance entitling the Coroner to reimbursement for overtime and outside copy labor charges and requiring Ms King to post a cost bond On January 26 2010 Ms King responded with an amended public records request She reduced her request to seek access to only her email records between June 30 2008 and August 25 2009 together with the Coverdell Grant records She sought to examine and copy the records herself In the requesting letter she initially agreed to pay 25 cents per copy for copies of the documents On February 11 Ms King answered the petition made a reconventional demand and sought declaratory relief and a writ of mandamus Ms King generally denied the allegations of the Coroner petition sought an order s compelling the Coroner to comply with her public records request and asked for attorney fees The Coroner answered Ms King reconventional demand s generally denying her allegations The matter came on for trial by summary proceeding on March 4 2010 The trial court subsequently entered judgment granting in part and denying in part both parties demands It ordered the Coroner to produce 440 pages of the Coverdell Grant records at a cost of 10 cents per page or 44 It further ordered the 00 Coroner to immediately provide 4 pages of emails immediately by electronic 782 format with at least 2 of the remaining pages to be produced by electronic 500 format each successive Friday until all 14 documents were produced The trial 339 court ordered the Coroner to promptly generate a privilege log and ordered the Coroner to produce privileged information in redacted form if possible The trial court denied Ms King prayer for attorney fees s The trial court denied the Coroner request for new trial The Coroner s appealed asserting four assignments of error summarized as follows 3 1 Ordering Ms King to pay only 10 cents per page for copies of Coverdell grant records 2 Ordering the Coroner to produce 14 pages of email per Ms King 339 s public records request at no cost to her 3 Ordering the Coroner to produce 14 pages of email in an electronic 339 format 4 Ordering the Coroner to produce 14 pages of email at a production 339 schedule that is so burdensome that it interferes with the operation of its constitutional and legal duties DISCUSSION The Coroner arguments primarily criticize the trial court interpretation of s s La R 44 and Louisiana Administrative Code LAC 4 These S 32 2 C 301 I provisions govern public records in the hands of state agencies They provide as follows in pertinent part La R 44 S 32 2 C For all public records of state agencies it shall be the duty of the custodian of such records to provide copies to persons so requesting Fees for such copies shall be charged according to the uniform fee schedule adopted by the commissioner of administration as provided by R 39 S 241 LAC 4 301 I A Copies of public records furnished to a person so requesting shall be provided at fees according to the following schedule B 1 Charges for the first copy of any public records shall be at a minimum 0 per page for microfiche reproductions or paper 25 copies up to 8 1 by 14 inches 2 Electronic Format Email The Coroner argues in brief that under these provisions the trial court judgment is contrary to law because the law requires that public records stored in a computer database will be provided through printouts The Coroner further Louisiana Revised Statutes 39 provides in pertinent part as follows 241 A Not later than ninety da after the effective date of this Section the commissioner of s administration with the approval of the governor shall by rule or regulation adopt a uniform fee schedule for copies of public records of executive branch state agencies furnished to persons so requesting by custodians thereof as provided by R 44 Copies of the public record furnished S 32 to a person so requesting shall be provided at fees according to the schedule except for copies of public records the fees for the reproduction of which are otherwise fixed by law 12 argues that h the legislature wished for the public to be able to obtain ad reproductions of information stored in the computer database of a state agency in any other form they could have so stated He continues As the law stands the only reproductions permitted of records stored in a state agency computer are printouts In this context we review Louisiana law and jurisprudence to determine whether the trial court erred in ordering that the Coroner produce 14 pages of 339 email on an electronic format First La Const Art 12 3 provides a fundamental right to the public to have access to public records as follows No person shall be denied the right to observe the deliberations of public bodies and examine public documents except in cases established by law Pursuant to this Constitutional guarantee La R 44 provides as follows S 31 A Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees B 1 Except as otherwise provided in this Chapter or as otherwise specifically provided by law and in accordance with the provisions of this Chapter any person of the age of majority may inspect copy or reproduce any public record Emphasis added 2 Except as otherwise provided in this Chapter or as otherwise specifically provided by law and in accordance with the provisions of this Chapter any person may obtain a copy or reproduction of any public record 3 The burden of proving that a public record is not subject to inspection copying or reproduction shall rest with the custodian Further as provided in La R 44 and La R 44 the burden of S 31 3 B S 35 justification for withholding records is on the custodian The Louisiana Supreme Court instructs us that the provisions of the Constitution and the statutes must be liberally construed in favor of free and unrestricted access and any doubt must be resolved in favor of the right of access Title Research Corp v Rausch 450 2d So 933 936 37 La 1984 Louiaiana Revised Statute 44 provides that the burden is on the cuctodiun to sustain his action t3 35 5 Pursuant to these precepts we conclude that the trial court did not err in ordering the Coroner to produce the pages of email by electronic format At the hearing in the trial court at which no evidence was introduced the counsel for the Coroner conceded that it could and would produce the pages in electronic format Ms King argued that less expensive means than photocopying existed for her to obtain the records she sought The Coroner acknowledged that he had the technology and skill to download the information sought but he argued tlhat just a time issue I mean it s s not really a financial issue other than the time required to do that 5 We note as did the supreme court in Title Research Corp 450 So at 2d 937 that the person requesting public records has the right pursuant to La S 31 R 44 to choose one of four options and that the choice of which 1 B optional right to exercise rests with the one requesting the records and not with the custodian Emphasis added Here while Ms King requested copies in her formal requests at trial she requested that she either be allowed to copy the emails herself or that they be downloaded onto an electronic format Thus she made her election indicating that she wanted the least expensive option After discussion with counsel regarding cost time and ease of compliance counsel for the Coroner conceded that it would produce the records in electronic format as follows Absolutely we will produce it that way Emphasis added Obviously therefore all documents had not been reproduced at that time None had been produced to Ms King Accordingly the trial court found that copy The s s Coroner main concern in this regard at the trial court appears to have been the timc and costs associated with asserting it privileges We discuss his contentions below J costs could be avoided and ordered that the emails be downloaded onto an electronic format over a four week period Further despite the Coroner contention to the contrary nothing in La s S 32 R 44 or LAC 4 specifically prohibits reproduction of public 2 C L301 records by electronic format And access can be denied only when a law specifically and unequivocally provides otherwise Title Research Corp 450 2d So at 936 In Johnson v City of Pineville 081234 p La 3 Cir 4 9 10 App 09 8 3d So 313 320 although involving a nonstate agency the court considered a similar public records request and found use of electronic formats is safe and reasonable The City of Pineville court observed and reasoned regarding voluminous records with which we agree We live in an age of technology in which private individuals as well as government can use information technology to create astronomical numbers of documents To allow the public entity to create such voluminous records using information technology and then deny the use of that same technology to the public reviewing those records would strike directly at the heart of the public s fundamental right of access to public records that is guaranteed by the Louisiana Constitution When confronted with public records of goliath proportions the average citizen fundamental right of access s would prove illusive if he is denied the opportunity to use the very technology which helped create the overwhelming amount of information To reproduce over 13 e on paper when other 000 mails safe efficient and reasonable means are available is unnecessarily laborious costly wasteful and conflicts with the legislative intent of making public records as available as possible City of Pineville 08 1234 at p 9 9 So at 31920 3d Liberally construing the public records laws in favor of access to the records the City of Pineville court ordered reproduction of public records employing an electronic format noting that no specific law prohibited reproduction of public records in this format Id 08 1234 at p 10 9 So at 320 3d Similarly we conclude the trial court did not err in ordering the Coroner to produce the emails requested by electronic format and in providing a reasonable bl time for the Coroner to comply And based on the Coroner representations at s trial we conclude the trial court did not err in failing to impose the apparently negligible cost of the electronic format on which the data will be downloaded Attempts to Distinguish City ofPineville We respectfully acknowledge the Coroner attempts to distinguish City of s Pineville but we find the attempts unpersuasive First he argues that the use of the word shall in La R 44 is mandatory where it requires that fees S 32 2 C for copies shall be charged according to a uniform fee schedule adopted by the commissioner of administration As discussed above the statute does not specifically prohibit the reproduction of public records by electronic means Secondly he argues that unlike in City of Pineville the emails at issue here had not been segregated from those exempt from the Public Records laws This argument was not raised at trial and appears contrary to those made at trial The record does not support the Coroner arguments in this regard Further the trial s court gave the Coroner a reasonable amount of time to comply with its judgment Third the Coroner argues that the trial court in City of Pineville ordered that the documents be produced at the cost of the person requesting the public records while the trial court here did not assess costs As discussed above however the trial court found based on the representations of counsel that the cost of reproducing the emails at issue could be avoided From the record before us we cannot conclude that the trial court erred in this regard Fourth the Coroner seems to argue that it can limit the number of documents a requestor can receive at no cost The Coroner cites a prisoner suit in support of this contention However as discussed above the trial court reasonably The Coroner contrasts the language employed in La R 44 which applied to the City of Pineville a S 32fC a I non suite agency Ilie language this paragraph is discretionary this paragraph provides as follows For all public records except public records ofstate agencies it shall be the duty of the custodian of such public records to provide copies to persons so requesting The custodian may establish and collect reasonable fees for making copies of public records Copies of records may be furnished without charge or at a reduced charge to indigent citizens of this state Emphasis added E found that costs and time expenditure could be avoided by employment of an electronic format Further in this fourth argument the Coroner seems to contend without support of law that one requesting public records should be required to pay for the s Coroner exercise of his obligations to protect legally privileged information The Coroner seeks to include the office costs of protecting privileged information into the costs of copying The law however sometimes puts an onerous burden on the Coroner to prove that he is not required to comply with a public records request La R 44 and La R 44 We find nothing in the law and the S 31 3 B S 35 Coroner cites nothing that would allow the Coroner to shift this burden Fifth the Coroner reasserts that LAC 4 requires that documents be 301 I reproduced on paper We have addressed this argument in the reasons set forth above Finally the Coroner argues based on City of Pineville that one making a public records request should not always be allowed to reproduce public records in any way he or she chooses Our holding today does not go so far as the Coroner suggests Based on the record before it and the representations of counsel the trial court fashioned a reasonable and narrowlytailored remedy for the issues at hand in accordance with the law Accordingly we find no merit in the Coroner second third and fourth s assignments of error Copies of Grant Records At trial the Coroner argued that the Coverdell Grant records were in hard form and could be not reproduced electronically He argues that the trial court erred in ordering a copy cost of 10 cents per copy when LAC 4 requires at 301 I least 25 cents per page We agree that LAC 4 requires copy costs of 25 cents 301 I We observe that the Public Records Laws seem designed to provide actual costs involved in providing records Pursuant to a requestor s constitutionally protected right It does not seem designed to allow office costs and costs ofasserting a public entity legal obligations and privileges s M per page and we do not see where the trial court has discretion to vary this cost despite the Coroner representation At trial the Coroner advised the trial court s that It up to you to sort of you know it up to you to set the price While we s s agree with the trial court that 10 cents per copy is reasonable we reluctantly conclude that the trial court abused its discretion in setting the fee for hard copies at less than that required by LAC 4 301 I We find merit in the Coroner first assignment of error We amend the trial s court judgment to reflect a copy cost for 440 pages of the Coverdell Grant records to 25 cents per page or 110 00 DECREE For the foregoing reasons we amend the trial court judgment and order and adjudge that Laura King shall pay a reasonable sum to the St Tammany Parish s s Coroner Office of 0 per page for copies of the Coverdell Grant records for a 25 total of 110 We vacate the judgment insofar as it ordered 0 per page for 00 10 these copies for a total of 44 In all other respects we affirm the judgment of 00 the trial court Costs of this appeal in the amount of 409 are to be split equally 05 between Laura King referred to as Jane Doe in the petition and the St Tammany Parish Coroner AMENDED AFFIRMED AS AMENDED 10 ST TAMMANY PARISH CORONER NUMBER 2010 CA 0946 VERSUS COURT OF APPEAL JANE DOE FIRST CIRCUIT STATE OF LOUISIANA BEFORE KUHN PETTIGREW JJ and KLINE J pro tempore PETTIGREW J CONCURS Louisiana Revised Statutes 44 places the burden on the custodian to sustain 35B his action The Coroner has failed to do such Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court Q ST TAMMANY PARISH CORONER FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA NO 2010 CA 0946 JANE DOE Kuhn 4 J concurring in part and dissenting in part I concur with that portion of the plurality opinion that amends the trial s court judgment and orders Ms King to pay 0 per page for copies of 440 25 pages related to the Coverdell Grant Otherwise I dissent from the plurality s affirmation of that part of the trial court judgment that ordered the St Tammany s Parish Coroner the Coroner to produce public records of that agency in an electronic format at no cost to Ms King The Coroner established as a matter of law that it was entitled to impose a 25 0 charge for copies of the public records requested by King It is undisputed that the Coroner office is a state agency See La Const Art V s 29 Mullins v State 387 So 1151 La 1980 As such it is subject to the rules set forth in La 2d R S 44 addressing public records of state agencies which sets forth that 2 32C it shall be the duty of the custodian of such records to provide copies to persons so requesting Fees for such copies shall be charged according to the uniform fee schedule adopted by the commissioner of administration as provided by R S 241 39 Emphasis added Louisiana Revised Statutes 44 further states 2 32C Copies shall be provided at fees according to the schedule Emphasis added Louisiana Revised Statutes 39 states in pertinent part Copies of the public 241 record furnished to a person so requesting shall be provided at fees according to the schedule Emphasis added The uniform fee schedule for copies of public records is set forth in LAC 301 1 4 Section B of that regulation sets forth that charges for the first copy of any public records shall be at a minimum 0 per page for microfiche reproductions 25 or paper copies up to 8z by 14 inches Due to the plain meaning of the pertinent statutes and regulation there is no need for further interpretative analysis Ms King is entitled to obtain a copy or reproduction of any public record except as otherwise provided by law La S 31B R 44 As an exception to this general rule the law provides that when 2 access to public records of a state agency is sought the custodian is mandated only to provide copies of such records and the applicable fees for such copies shall be charged La R 44 S 32C 2 Thus the legislature has placed reasonable restrictions on the public fundamental right of access to public records of state s agencies by requiring that the person requesting copies of public records pay a fee for such copies La R 44 The fee of 0 per copy set forth in LAC S 32C 2 25 301 I 4 is a reasonable fee During the March 4 2010 hearing the Coroner counsel informed the court s that the Coroner office had already printed 14 pages of e mail in response to s 339 Ms King request Transcript pp 49 51 The record further establishes that s Ms King did not challenge this information The plurality ruling imposes the s cost of such an effort on the State rather than on Ms King a result that is contrary to the applicable law Thus the record demonstrates that the Coroner met its burden of establishing that it was entitled to collect the 0 per page fee for the 25 records it produced Accordingly I dissent in part from the plurality findings to s the contrary 2

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