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Deshotels v. White

Court of Appeals of Louisiana, First Circuit

August 16, 2017

MICHAEL R. DESHOTELS
v.
JOHN WHITE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, AS SUPERINTENDENT OF THE LOUISIANA DEPARTMENT OF EDUCATION AND THE LOUISIANA DEPARTMENT OF EDUCATION

         On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. 638, 503, Honorable Todd W. Hernandez, Judge Presiding

          J. Arthur Smith, III Baton Rouge, Louisiana Counsel for Plaintiff /Appellee Michael R. Deshotels.

          Troy A. Humphrey G. M. Millet, Jr. Baton Rouge, Louisiana Counsel for Defendants/Appellants John White, in his individual Capacity and as Superintendent of the Louisiana Department of Education, and the Louisiana Department of Education.

          Brian F. Blackwell Charles L. Patin, Jr. Baton Rouge, Louisiana Counsel for Amicus Curiae Louisiana Association of Educators.

          BEFORE: WHIPPLE, CJ., GUIDRY, PETTIGREW, McDONALD, McCLENDON, WELCH, HIGGINBOTHAM, CRAIN, THE RIOT, HOLDRIDGE, CHUTZ, AND PENZATO, JJ.

          McCLENDON, J.

         The defendants appeal a judgment awarding civil penalties to the plaintiff where the trial court determined that the defendants "arbitrarily and capriciously" failed to produce the documents sought through a public records request. For the following reasons, we amend the judgment and affirm as amended.

         FACTS AND PROCEDURAL HISTORY

         On Friday, February 6, 2015, Michael Deshotels submitted a public records request to John White, State Superintendent of Education, and to the Louisiana Department of Education (the Department), seeking "a copy of the October 2014 multistat report for all public schools in Louisiana, giving the actual total number of students enrolled in each grade including all various categories of ethnic groups and free or reduced lunch and other designations in each public school in Louisiana."[1] In his request, Mr. Deshotels specified that he did "not want the suppressed or rounded off enrollment numbers." In a response dated February 10, 2015, the Tuesday following the request, the Department provided averaged ranges as opposed to the actual number of students as requested.

         On February 17, 2015, Mr. Deshotels, through counsel, again sought the same information with "the actual number of students" as opposed to "suppressed or averaged ranges of the actual statistics." In a response dated March 18, 2015, the Department noted that it provided Mr. Deshotels with the "multi-stat in the form and fashion that is compliant with FERPA, " or the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.

         On March 23, 2015, Mr. Deshotels, through counsel, again sought the unsuppressed documents. Mr. Deshotels, referencing 34 C.F.R. § 99.3, [2] opined that FERPA did not prohibit disclosure because the personal identification of the students would not be disclosed. In a response dated March 30, 2015, the Department indicated that it could not release the requested information unsuppressed, reasoning as follows:

Pursuant to the policies and procedures established to ensure student privacy, the Department can only release the requested information in the suppressed form that has been provided to your client. That information, if not suppressed could alone or in combination, is subject to being linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.

         The Department concluded that it was not its "intent to withhold public records, but rather to protect student privacy in accordance with the applicable laws, rules, and regulations within which the Department must comply."

         On April 15, 2015, Mr. Deshotels filed a "Petition for Injunctive Relief Pursuant to the Louisiana Public Records Act, " naming John White and the Department as defendants. In his allegations, Mr. Deshotels averred that in a prior action involving a similar request made by him, the trial court had previously ruled, in a judgment dated September 12, 2014, that the information sought was a matter of public record and the actual figures should be used. Mr. Deshotels asserted that the September 12, 2014 decision was not appealed. In his prayer for relief, Mr. Deshotels requested a preliminary injunction be issued to, among other things, require the defendants to produce the public records. Mr. Deshotels also sought an award of reasonable attorney's fees and statutory damages in the amount of $100.00 per day for each day of the defendants' violation of the Louisiana Public Records Act.

         The matter was originally set for hearing on April 30, 2015. However, on that date, the defendants filed a peremptory exception raising the objection of no cause of action, resulting in the court setting a status conference and reassigning the matter. Defendants' peremptory exception of no cause of action was subsequently heard and denied on October 6, 2015.

         On October 19, 2015, a hearing was held on Mr. Deshotel's petition for injunctive relief. Both parties offered witnesses and evidence in support of their positions. At the hearing, Mr. Deshotels testified that the data he received from the Department in response to his public records request was useless because he needed actual figures to perform a statistical analysis of student enrollment, graduation, dropout, and transfer rates. Mr. Deshotels indicated that for approximately twenty years prior, the Department had supplied citizens with the actual student enrollment data and published this information on its website. Mr. Deshotels also noted that the defendants, even though they refused to provide the unsuppressed data, recognized that "it's possible" to retrieve the unsuppressed information for Louisiana from the United States Department of Education (USDOE). Further, Mr. Deshotels pointed out that the unsuppressed data had been made available to at least fourteen entities, including various companies, nonprofit agencies, and universities.[3] Mr. Deshotels further noted that the defendants could not point to a specific regulation that would prohibit such disclosure and were aware of the prior trial court ruling that was not appealed ordering such disclosure.

         In support of the defendants' position, Kim Nesmith, Director of Data Quality and Management for the Department, testified that the Department relied on communications with and publications of the USDOE to develop these suppression techniques.[4] Ms. Nesmith conceded that one could not determine the identity of a child, the child's social security number, the child's date of birth, or the parents' names from reviewing the documents alone, looking only at the unsuppressed information pursuant to the request. Similarly, John White, Louisiana Superintendent of Education whose deposition testimony was introduced into evidence, indicated that the unsuppressed information does not include any detailed personal information about any student.

         Ms. Nesmith, however, further testified that FERPA encompasses indirect personally identifiable information, and the Department must take into account that when one or more pieces of information are combined it would allow a reasonable person to identify a child. Ms. Nesmith indicated that when the reports are used together with other reports, or when a person reviewing the unsuppressed reports "simply know[s] a little data about the state, " the person reviewing the reports could determine the identity of the children. Regarding the 2014 multi-stats request, Ms. Nesmith testified:

There are thirty-two different schools with a hundred percent of their children that are economically disadvantaged. For me to release that data would indicate that anybody who has children going to that school would be economically disadvantaged. Of those thirty-two, four of them also have a hundred percent children with disabilities; so I would then be saying to the public, everyone, if your child goes to this school, not only are they all economically disadvantaged, they also have a disability.

         Ms. Nesmith also testified that it was at the USDOE's request that these reports were taken off of the Department's website.

         Following the hearing, the trial court took the matter under advisement and signed a judgment on December 15, 2015. In its judgment, the trial court granted Mr. Deshotels' petition for injunctive relief and ordered production of unsuppressed copies of the October 2014 multi-stat report.[5] The trial court also awarded Mr. Deshotels attorney's fees and costs of the proceedings. Additionally, the trial court found that the defendants acted arbitrarily and capriciously in failing to produce the records and ordered the defendants to pay Mr. Deshotels statutory penalties in the amount of $100.00 per day from February 16, 2015, until the public records are produced.[6]

         The defendants timely filed a motion for new trial on December 23, 2015, which was summarily denied by the trial court on January 13, 2016. The trial court signed a judgment denying the motion for new trial on February 18, 2016.

         On February 16, 2016, the defendants sought a suspensive appeal from the December 15, 2015 judgment. In their appeal, the ...


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