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Lowe v. The Parish of St. Tammany

Court of Appeals of Louisiana, First Circuit

January 23, 2018

ERIC LOWE
v.
THE PARISH OF ST. TAMMANY D/B/A ST. TAMMANY PARISH GOVERNMENT, PATRICIA P. BRISTER, IN HER OFFICIAL CAPACITY AS PARISH PRESIDENT AND THE CUSTODIAN OF RECORDS FOR ST. TAMMANY PARISH D/B/A ST. TAMMANY PARISH GOVERNMENT AND SIDNEY FONTENOT, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF PLANNING AND DEVELOPMENT FOR ST. TAMMANY PARISH GOVERNMENT

         ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT NUMBER 2016-10220, DIVISION F, PARISH OF ST. TAMMANY STATE OF LOUISIANA HONORABLE MARTIN E. COADY, JUDGE

          Leonard L. Levenson Christian W. Helmke Colleen Boyle Gannon Donna R. Barrios New Orleans, Louisiana Counsel for Plaintiff-Appellant Eric Lowe.

          Deborah Spiess Henton Kelly M. Rabalais Angel L. Byrum Covington, Louisiana Counsel for Defendants-Appellees The Parish of St. Tammany d/b/a St. Tammany Parish Government, Patricia P. Brister, in her official capacity as Parish President and the Custodian of Records for St. Tammany Parish d/b/a St. Tammany Parish Government and Sidney Fontenot, in his official capacity as Director of Planning and Development for St. Tammany Parish Government.

          BEFORE: WHIPPLE, C.J., McDONALD AND CHUTZ, JJ.

          CHUTZ, J.

         Plaintiff-appellant, Eric Lowe, appeals the trial court's judgment denying him attorney fees subsequent to his request for withheld and redacted documents by defendants-appellees, the Parish of St. Tammany, its president, Patricia P. Brister, and its Director of Planning and Development, Sidney Fontenot (collectively "the Parish"). We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Lowe made a public records request (PRR) to the Parish seeking "[t]he entire file, or files, pertaining to code enforcement case CE9532 (108 Churchill Downs Dr.) to include the application for a home office permit." Lowe additionally requested "any and all emails, letters, memos, and faxes, internal and external, regarding these files, applications, investigations, or anything regarding this matter." The following day, the Parish responded to Lowe's PRR by letter advising that, while it had begun the process of retrieving the requested documents, it would avail itself of any statutory provision which either exempted or prohibited production of documents as well as the attorney-client privilege.

         The Parish subsequently advised Lowe that it had located 819 pages and three videos responsive to his PRR. The Parish also informed Lowe that 17 pages were redacted "for privileged inter-Parish Government correspondence that included a Parish attorney or attorneys and/or the personal information of private citizens"; and that 34 pages "that were designated as privileged inter-Parish Government correspondence that included a Parish attorney or attorneys" would not be produced.

         Lowe then sent a letter to the Parish requesting it produce a Privilege Log regarding any and all documents and/or portions of documents that were withheld due to a privilege. The Parish responded that it did "not know of any legal provision that would compel [it] to produce a privilege log relating to a [PRR]."

         On January 14, 2016, Lowe filed a petition for a writ of mandamus, declaratory judgment, attorney fees, penalties, costs, and damages. He specifically requested issuance of a writ of mandamus ordering that, relative to the 34 withheld documents, the Parish produce: a privilege log; and/or, alternatively, the documents "with the most limited redactions possible while preserving the alleged privilege"; and/or the allegedly privileged documents for an in camera inspection. Lowe also requested that, subsequent to his requested production of documents and/or in camera inspection, the trial court issue a declaratory judgment declaring whether the 34 documents withheld by the Parish were public records subject to disclosure. The Parish subsequently filed a peremptory exception raising the objection of no cause of action averring that it was not required to create and produce a privilege log.

         A hearing was held on March 9, 2016, on both the exception of no cause of action and the public record claims Lowe raised in his petition. The trial court determined it would conduct an in camera inspection, and it directed the Parish to produce the redacted and withheld documents, taking the matter under advisement. After issuing detailed written reasons for judgment, on April 13, 2016, the trial court signed a judgment, overruling the exception of no cause of action and granting the writ of mandamus, ordering the Parish "to produce the public records at issue that were withheld from [Lowe], excepting therefrom any personal information of private citizens, pursuant to a mutual protective order." Neither Lowe nor the Parish filed motions for new trial or appealed the April 13, 2016 judgment.

         On October 31, 2016, Lowe filed motion for attorney fees, penalties, costs, and damages. A hearing was held and on February 7, 2017, the trial court signed a judgment denying Lowe's request for attorney fees, penalties, statutory costs, and damages, but granting his request for court costs. Lowe appeals asserting that the trial court erred in not awarding him attorney fees since he had prevailed in the litigation.[1]

         SUBJECT ...


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