Randal Johnson VS Malcolm Broussard, Carlos Finalet and The Louisiana Board of Pharmacy
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STATE OF LOUISIANA COURT OF APPEAL FIR IRCUIT N0 20 CA 198 2 RANDAL JQHIVSJN VERSUS MALCOLM BROUSSARD CARLOS FINALET THE LOUISIANA BOARD OF PHARMACY udgment rendered June 7 2013 Appealed from the 19 Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 615 481 Honorable Timothy Kelley Judge KARL J KOCH ATTORNEY FOR BATON ROUGE LA APPELLEE PLAINTIFF 4NDAL JOHNSON R E WADE SHOWS ATTORNEYS FOR CARRIE LEBLANC JONES APPELLANTS DEFENDANTS BATON ROUGE LA MALCOLM BROUSSARD CARLOS FINALET THE LOUISIANA BOARD OFPHARMACY BEFORE KUHN PETTIGREW AND McDONALD JJ PETTIGREW J In this public records request case the plaintiff Randal Johnson Mr Johnson was denied his request by the Louisia Board af harmacy the Board to produce a a digital copy of a computer database he alleged contained public record information The trial court granted plaintiffs motion for alternative writ for mandamus which was made peremptory after a hearing by judgment signed October 4 2012 The judgment ordered the Board to comply with plaintiffs request ordered the plaintiff to pay reimbursement for the costs of fulfilling said request not to exceed 500 and also awarded the 00 plaintiff attorney fees in the amount of 4 together with the costs of the s 00 000 proceeding This appeal by the Board foflowed After a thorough review of the record and applicable law taking into consideration the concessions of plaintifPs counsel at oral argument we amend the court judgment to modify the amount of reimbursement costs s the plaintiff is ordered to pay However as modifed we a the judgment ordering rm the Board to comply with the public record request finding the trial court did not err in granting the request FACTUALBACKGROUND On August 24 2012 Mr Johnson a person well known in the pharmacy industry as the President of the Louisiana Independent Pharmacy Association LIPA in his s individual capacity made a public records request by way of email to Malcolm J Broussard Mr Broussard the executive director and record custodian for the Board to produce a list of pharmacies including the names thereof the owners names the mailing and physical addresses the EA NCPDP and permit numbers for each the name of the pharmacist in charge at each as well as the telephone fax and email contacts for each On that same date Mr Carlos Finalet Mr Finalet general counsel for the Board replied by email to Mr Johnson email request that the Board computer system was s s unable to generate reports compiling the list of information requested but offered instead to generate a mailing list with name and address simple Mr Finalet email also s This is an identifier number assigned by the National Council for Prescription Drug Programs 2 indicated that the Board system did not include pharmacy teiephone or fax numbers s email addresses and that the Board did not collect the NCPDP numbers Mr Finalet also responded that while the Board did collec and store eacl pha DEA number I s rmacy would suggest it might be bad p polocy to reiease th DEA numbers for obvious lic i reasons On September 4 2012 Mr Johnson again e Mr Broussard acknowledging naiied the time constraints and resources necessary to meet his request and in that email he agreed to modify that request to being provided with access to review the icensure database for pharmacies and pharmaclsts Mr Johnson advised that he would be accompanied to the review of the records by a professional who would then quaiified digitally copy the information needed to compile the requested list of information onto his own storage equipment He also requested that the Board notify him as to the time that such request could be honored Later that same day Mr Finalet replied to Mr 7ohnson email request advising s him that Mr Broussard was out of town until September 10 2012 and that he Broussard as executive director wau have fo evaluate the staff resources of the Board d upon his return to determine a proper sehedule for Mr 7onnson review of the database s Again on that same date Mr Johnson repli that Mr Finalet should take a look d at the public records request skatute inaicating that a public body is not allowed unnecessarily to delay providing requested public records and reiterated his request that he be allowed access te the database by the end of that week Mr Johnson further advised that he did not foresee needing to utilize any of the Board own staff to access s the database for the information he requested so that no Board resources would be utilized in meeting his request Z It appears the Board has recanted this representation suggested by Mr Finalet in ihis response email dn a subsequent deposition of Mr Finalek taken on September 27 2012 Mr Finalet testified that he iater clarifiecf the issue with a DEA agent who after conferring with her supervisors told Mr Finalet that the DEA numbers for the pharmacies are pu6lic record and not exempt from public record disclosures 3 Later that same date Mr Finalet sent a reply email disputing Mr Johnson s assertion of the Pubic R Law as a basis for his r indicated that the Board cords equest He acknowledged the request for records zhat are biic in nature and its duty to provide him with access but contested Mr J assertion that the records should be s hnsar provided quickly without delay SFeGifiealdy d riraiet noted that the statute does not 1r state a specific timeline within which you shall have access deadline More significa Mr Finalet replied that the files requested by Mr Johnson while tfy containing public information also contained confidential information such that the Board would have to retain a staff inember to pre the files to separate the review confidential information and also that the Board wouid charge Mr Johnson for the staff s salary spent on compiling the public records requested Finaily he reiterated that Mr Johnson would have to await fUrther instruckions from Mr Broussard regarding scheduling the request On September 8 2012 by email Mr Broussard sent a comprehensive reply to Mr Johnson initially stating the following With respect to our licensure information system we are unable to create a computer screen shot that contains all the information you requested that does not also contain confidential information such as social security numbers e Therefo we a unable ta grant you access to the licensure e database However we can give yau access to the files containing such documents used to create the database Emphasis added The reply then posed numerous questions to Mr Johnson related to limiting the scope of his request i did it seek only information related to active status e pharmacies or restricted status as weli did it se credentials related to oniy active k status or was it also seeking information on inactive suspended revoked closed deceased did it include only pharmacies with Louisiana addresses etc Mr Broussard then advised that prior to Mr Johnson sreview of the database the Board would need to utilize a staff member to screen each file find a way to block access to confidential information and indicate a need to narrow the files requested so that no time or resource would be wasted screening unnecessary files He informed Mr Johnson 4 that he would be responsible fr reimbursir r gthe Board far the labor costs for staff persons assigned to the request as well as copying charges He further advised Mr Johnson that the estimated time for the pr of khe files in preparation of screening complying with his request would be weeks and probaply months Finally he asserted his non opinion that the req was overdy burder and that once legal est me s Mr Johnson could clarify the magnitude of it the Board would then begin the pre screening and advise Mr Johnson when the fles would be ready for review As discussed below followinq receipt of the September 8 2012 email from Mr Broussard plaintiff filed a petition far writ of mandamus ordering the Board to comply with his request However on September 19 2Qi2 plaintiff attorney also sent an email s to Mr Finalet asking him to provide the name of a witness that would be called to testify regarding the Board licensure databases and computer programs related to licenses for s pharmacists and pharmacies including information regarding the architecture of the database and whether any technical impediments exist preventing making a copy of those files Mr Finalet responded that there had been no response yet from the plaintifF to Mr Broussard inquiry in his September 8 2012 email regarding clarification of the s magnitude of the plaintiffs request PfaintifF counsel responded to hat email also on s September 19 2012 that Mr Johnson presented a straightforward simple request he wants a digital copy of the licensur Catabases for pharmacies and for pharmacists There is nothing that needs clarificateor PROCEDURAL HISTORY On September 17 2Q12 plaintiff filed a petition for alternative writ oP mandamus naming the Board Mr Broussard and Mr Finalet both personally and in their official capacities with the Board as defendants This is the petition that the triai court granted that forms the basis of this appeal In addition to seeking production of the requested records plaintiff prayed for court costs and attorney fees incurred in bringing the action s as weil as statutory penalties Plaintiff alleged that despite his initial and subsequently amended requests the defendants failed to make the requested records available for copying and attempted to condition the piaintiff access to the records upon his s 5 agreement to pay charges riot authorized by iaw Plaintiff further alleged that the defendants claim it wili be months before the request can be fulflled and that his request is overly burdensome and wauld cause the B ielays in the performance of its other oard duties d that simel requests by mther seei substar the same information spite r ing tial9y had been met within days of making th c Piaintiff also contended that the Board st qu had implied that it would let ali licensees know that any delay in the processing of license applications was due to Mr Johnson verly burdensome request utilizing the Board s s resources for something other than fulfilling its ordinary obligations The defendants responded with an exception of prematurity contending that the parties were engaged in an on dialogue and that they never received a reply from going the plaintiff following the last communication on September 8 2012 seeking clarification of the magnitude of plaintiffs request They claim because they were awaiting a response there had been no final determination by the custodian regarding the request such that the suit filed by the plaintiff was premature Defendants also opposed the plaintiff petition by asserting that the records s sought by the plaintiff do not exost Le not contained in the format requested by plaintif and therefore they are not public records and cannot be produced And in the alternative only if the request is deemed to be for records that are pubic defendants maintain that the production thereof would be burder and would cause an some unreasonable disruption of the operation of the Pharmacy Board legal responsibilities s and duties such that if production is ordered the plaintiff should be required to inspect the documents after hours and may be charged reasonable reimbursement fees Finally the defendants maintain that their conduct in response to the plaintiff request was not s arbitrary capricious or unreasonable therefore costs attorney fees and penalties are s not appropriate ACTION IIV TI1E TRIAL COURT Exception of Prematurity The trial court heard both the exception and the mandamus request on the same date After arguments on the exception the triat court determined that there had been a 6 valid public records request and t ne respanse t that request had been made and hac denied the exception of prematUrity Defendants Evidence At the hearing on the merits of the etitian for a9ternative writ of mandamus the Board presented the testimonies of 1r Broussard and Mr Finafet and submitted into evidence all emails pertinent to the pfa request According to both Mr Broussard ntiffs and Mr Finalet the information requested by the laintiff could not simply be obtained by copying the files because those files also contain confidential information such as social security numbers that would have to be redacted therefrom to preserve the integrity of the confidentiality owed by the Board Because the fles did not exist in the form requested by the plaintifF defendants took th position that the records as requested did not exist and therefore could not be produced Moreover Mr Broussard testified that he had consulted with the Board database vendor who provided an estimated cost of s 00 200 4 to produce the requested information with confidential fields being redacted Mr Broussard also testified that the Board was willing to provide the information to the plaintiff through the use of the Board vendor given assurar that the integrity of the s ce records was protected Plaintiffs Evidence The plaintiff introduced into evidence his initial request to tne Board the Board s email responses and correspondence b the B and another individuai who tween ard made a very similar publie records request to khe Board on July 2012 reflecting that that request was honored approximately twenty day afrer it was ma in the form of an e excel spreadsheet that provided all the information requested a a total chargE to the requesting party of 136 for ame spent accurriulating the data 57 o The plaintifF also called as a witness Mr Burt Barrerre tendered as an expert in the field of computer information technology specifically relational databases who testified that it was possible to make a copy of a whole da while leaving out specific items abase deemed to be confidential and that he personaHy would be capabie of doing so 7 Mr Barrerre also testified that in the I w such a task is not particularly T rld complicated and indeed it was q com f a vendqr to erform such a task from it ri r an off locatic H further festif tha ifi sh site rnok ast anywhere near 4 00 000 In fact he d i pined that the ente t e sk sh Rce e s n ar ur rr th fo n at P00 00 per hour or a total of 4UO a Judgment of the Trial Court The trial court giving detailed c reasons fo that the plaintiffs request was ai d r for public records and that the defendants have not yet provided the information or any portion of the information requested The court a scated so m I convinced that the State Board either through its consultant or on its own has the ability to provide the information from the database that has been requested If they would not like to give the entire database because it contains confidentiai information they can certainly do the query search and provide the report that gives the information from their database that they possess The court further found incredulous the oard dT consultant estimate of s s 00 200 4 to write a progr m when a guy can sit down and do a query search under specifoc tables in four hours I think that they trying to jamb sic the state Board for re some money Implicit in this statement is the trial court find the piaintiff eacpert testimony that s ong s the information could be retrieved a mucn simpler ine way iin four hours at ensive c e 00 100 per hour more tenabfe than that af the B eomputer consultant s ard Therefore the tr court crder the mandam maintained nd ordered the al cf s Board to comply with the plaintiff request within ten da It also ordered the pto s s aintiff reimburse the Board for the cost of the data recovery but limited that reimbursement to an amount not to exceed 500 The trial court also assessed costs and attorney fees 00 s in the amount of 4 incurred ir the proceedings against the defendants 0 OQ0 TH APPEAL Defendants appealed the judgment of the trial court cont the trial court nding erred in finding that the records sought by Nir Johnsor are pub9ic records subject to production pursuantto the Pubfic Records Act They alternatively maintain thaY the trial 8 court erred in capping the rei ast i c the plainciff for producing the rsement nb osed n requested informatian at 500 and a in ovvarding cQSfs and attorney 00 s sfees GABLE APPi LAVIi Louisiana Constitution Arkicle XII Sectian i provides Vo person shall be denied the right to observe the deliberar of pubiic bodies and examine public ions ments doc except in cases established by law Emphasis added The provision of the constitution must be construed liberall and in favo of free and unrestricted access to the records and that access can be denied onfy when a law specifically and unequivocally provides otherwise Whenever there is doubt as to whether the public has a right of access to certain records the doubt must be resolved in favor of the s public right to see To allow otherwise would be n improper and arbitrary restriction on the public constitutional rights Title ResearcFr Corp v Rausch 450 So 933 s 2d 936 La 1984 see also Capital City Press East Baton Rouge Parish Metropolitan Council 96 p 5 7 1 696 So 562 564 1979 La 97 2d The foregoing constitutional provision has been codified in the Louisiana Public Records Act La R 44 etseq which includes in iks definition of public records all S 1 documentary materials induding information contained in e data processing tronic equipment having been used being in use or prepared possessed or retained for use in the performance of any functior under the a of the consti or laws of thQrity ution this state La R 44 S 1A a 2 Any person of the age f majority may o eopy or reproduce or obtain a t spec reproduction of a public record except as otherwise provided an this Chapter or as otherwise specifically provided by law La R 44 and B and Z The burden S 31A 1 of praVing that a public record is not subject to inspeetion copying or reproduction shall est with the custodian La R 44 S 316 3 In Title Research 45U So at 937 the supreme co noted that under La 2d rt S 316 R 44 the person requesting the public records has the right to cnoose one of 1 four options and the choice of which optional right to exercise rests with the one requesting the records and not with the custodian Emphasis added And this court 9 in St Tammany Parish Coroner v Doe 2010 p 7 App 1 Cir 10 0946 La 29 48 So 1241 1246 further held that nothing in the Louisiana Public Records Act 3d y ohibits specifical peproducteon vf publi4 reea y eformat ds onic ct This court cited the following passage from a clrc as for s rd h iit rt ppc We live ii an age af t whicin rivate individuals chnolcgy in as weli as government c use anrarmatibn tecfnnology to r create astronomical number of dacuments To allow the public entity to create such valuminous records using information technology and then deny the use of that same technology to the public reviewring thase records would strike directly at the heark of the publoc fundamentai right s of access to pubiic records that is gUaranteed by the Louisiana Constitution iNher confronted with puClic records of goliath proport the avera citizen fundamental ons a s right of access would prove illusive if he is denied he opportuniry to use the very kechnology which helped create the overwhelming amount of informatinn To reproduce over 000 mails 13 e on paper when other 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 Johnson v City of Pineville 2008 p 9 App 3 Cir 4 9 So 313 1234 La 09 8 3d 20 319 Any person wha has been aenied access te a public record may instikute proceedings for the issuance ef a it of rr as was done n this casej s andamus injunctive or declaratory relief together vvlth attorney fees costs and damages La S 5A R 44 Moreover the custodian is statutorily mandated to extend to the person a11 reasonable camfort and faclity r the fuii exercise of the right granted by th is Chapter La R 44 S 32A With regard to the type f access the person shall be allowed and any reimbursement the custodian may charge therefor the statute provides othing N herein contained shall prevent the custodian from maintaining such vigilance as is required to prevent alteration of any record while it is being examined and provided further that examinatio of records under the s authority of this Section must be conducted during regular office or working hours un the custodlan sha authorize s e examination of records in other than regula o or ce king wo hours In this event the persons designated to represent the custodian dur such examination sha be ng ed ecomper entit to reasonab sativn to be pafd to them dy the pub body having custody ofsuch ecord out of funds ic lo ided pro in dvance by t pe examining such reco in he ar d other than regu ce or warkir or aro rs La R 44 Emphasis addedj AdditionalBy h evstodian has authority to excise S 32A any rmateU public non confidential inf prier ing gi access to he pubfie record La S 32B R 44 However sirr beca ma reqa may eontain non pEy ase riap ested public records is not a reason for restricting ss acce Vllilliams Law Firm v Board of Supervisors of Louisiana State University and A M College 2003 p 6 0079 La App 1 Cir 4 878 So 557 563 04 2 2d Finally in any case in which a record is requested and a question is raised by the custodian as to whether it is a pubic record the custodian is mandated to give the requesting party in writing within three days qf the request notification of receipt of the request of his determination and the reasons therefor Such notification sha l contain a reference to the basis unde awwhich the custodian has determined exennpts a record or any part thereof from inspection copying or reproduction La R S 32D 44 ANALYSIS DISCUSSION There is Ifttle question that the information requested by Mr Johnson by definition is a public records request As notec bove the established jurisprudence reflects that simply because a record or information is not stored or kept by the custodian in the format requested by the person requesting the information does not render the public records non Addifionally the jurisprudence further establishes publi that the inclusion of confidential information in otherwise public records also does not render those records not public rather the custodian may redact the confidential information before meeting said request Therefore we find no merik in the defendants arguments that the request was not for public records or that they were unable to meet the request because it included confidentiaB information Moreover and as also noted above the statute gives any person requesting public records the option of choosing one of four options for obtaining said records one of which is to make a reproduction of the records as the plaintiff seeks herein The 11 statute is clear and unambiguous irr its grant af these alternate rights and it also is clear that the choice of whoch optional right to exercise rests with the one requesting and not with the custodian La R 44 Title Research 50 So at 937 S 31 2d Whole it is the duty of the custodian cQ r pu records and to ensure serve khe lic that nobody alters or destroys the recor se La R 44 this vigilance by the s S 32A custodian must be reasonable and it must be py those means that are least intrusive on the right of access Title Research 450 So at 937 2d 38 Finally the evidence presented wholly supports the trial court conciusion that s the Board has both the ability and the capabolity to extract whatever confidential information may be contained in the requested documents as well as the capability to ract e the requested information from its existing database and copy that for the plaintiff The testimony of the two experts difFered greatly in the estimated cost for accessing the database excising the confidential information and producing the requested copy of the database for the plaintiff The plaintlffs expert testified it could be done in no more than five hours at 100 per hour at a totai cost of 400 On 00 00 the other hand the Board in computer vendor es the task would cost up s house timated to 4 The trial court apparently believing khe plaintiff rand finding the 00 200 sexp s Board estimate unreasonably high ordered the plaintiff to pay reimbursement costs of up to 500 00 CONCWSION At oral argument in this matter however counsel for plaintiff emphasized to this court his client position that this dispute is not about costs but rather about s the obtaining the requested public records In pursuit of this ultimate goal counsel for plaintiff stated in open court that plaintiff would be wiliing to pay up to the 4 00 200 estimate if that was what it took to get the requested material In light of this concession by the plaintiff together with the statutory language allowing the custodian to ensure the integrity of its systems and the confidentiality of the information contained therein we amend the trial judgment to order plaintifF s court to pay reimbursement costs in an amount betwee 500 and not to exceed n 00 12 00 200 4 as reasonably warranted by the dctu ferts taken to reproduce the le requested materials In all other respects w fina thti trEa co d not err and the judgment as a modified is bv her affsrmed sts C h a af i assessed to the t 60 are 3 5 defendant the Lauislana Board c P f arrnacy AMENDED AFFIRMED AS AMENDED 13
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