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Roper v. The City of Baton Rouge

Court of Appeals of Louisiana, First Circuit

March 15, 2018

MARY ROPER
v.
THE CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE AND CASEY CASHIO, IN HIS OFFICIAL CAPACITY AS COUNCIL ADMINISTRATOR-TREASURER FOR THE CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGEMARY ROPER
v.
JUAN MANUEL "JOHN" DELGADO, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS COUNCILMAN, EAST BATON ROUGE PARISH METROPOLITAN COUNCILMARY ROPER
v.
J. CHANDLER LOUPE, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS MAYOR PRO TEMPORE, EAST BATON ROUGE PARISH METROPOLITAN COUNCILMARY ROPER
v.
C. DENISE MARCELLE, IN HER INDIVIDUAL CAPACITY AND IN HER OFFICIAL CAPACITY AS COUNCIL WOMAN, EAST BATON ROUGE PARISH METROPOLITAN COUNCILMARY ROPER
v.
ANTHONY "BUDDY" AMOROSO, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS COUNCILMAN, EAST BATON ROUGE PARISH METROPOLITAN COUNCILMARY ROPER
v.
JEWEL E. "TRAE" WELCH, III, IN HIS INDIVIDUAL CAPACITY AND IN HIS OFFICIAL CAPACITY AS COUNCILMAN, EAST BATON ROUGE PARISH METROPOLITAN COUNCIL

         On Appeal from The 1911 Judicial District Court, Parish of East Baton Rouge, State of Louisiana Trial Court Nos. C634960, C635044, C635045, C635046, C635047, and C635049, The Honorable Timothy E. Kelley, Judge Presiding

          Jeffrey K. Cody Baton Rouge, Louisiana Attorney for Plaintiff/Appellant, Mary E. Roper

          Murphy J. Foster, III Jennifer D. Sims Jacob E. Roussel Sunny Mayhall West Baton Rouge, Louisiana

          Attorneys for Defendants/Appellees, City of Baton Rouge/Parish of East Baton Rouge; Casey Cashio, in his official capacity as counsel Administrator -Treasurer for the City of Baton Rouge/ Parish of East Baton Rouge; Anthony " Buddy" Amoroso, in his official capacity as Councilman, East Baton Rouge Parish Metropolitan Council; J. Chandler Loupe, in his official capacity as Mayor Pro Tempore, East Baton Rouge Parish Metropolitan Council; Jewel E. " Trae" Welch, III, in his official capacity as Councilman, East Baton Rouge Parish Metropolitan Council; C. Denise Marcelle, in her official capacity as Councilwoman, East Baton Rouge Parish Metropolitan Council & Juan Manuel John" Delgado, in his official capacity as Councilman, East Baton Rouge Parish Metropolitan Council

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          CRAIN, J.

         In these consolidated actions seeking relief under the Louisiana Public Records Act, the plaintiff appeals a judgment rendered after a trial on the merits. The defendants answered the appeal. We reverse in part and affirm in part.

         FACTS AND PROCEDURAL HISTORY

         Mary E. Roper was the parish attorney for the City of Baton Rouge/Parish of Baton Rouge until the Metropolitan (Metro) Council terminated her employment on September 10, 2014. In the months leading up to the council's vote, Roper submitted a total of sixteen public records requests to the council, the mayor pro tempore, and several individual council members, generally seeking a copy of any emails, texts, or similar communications exchanged during the previous six years that pertained to Roper.[1] Several of the requests were withdrawn shortly after they were sent, including four requests made in May 2014, and four requests sent the following month in June.

         On August 12, 2014, Roper filed suit against the Metro Council, requesting declaratory and injunctive relief aimed at the council's efforts to terminate her employment. Roper served requests for production of documents ("discovery") on the same people who received the previous requests for records, including Chandler Loupe, as Mayor Pro Tempore; Casey Cashio, as council administrator/treasurer; and four council members: Jewel E. "Trae" Welch III, C. Denise Marcelle, Anthony "Buddy" Amoroso, and Juan Manuel "John" Delgado. The discovery sought essentially the same information requested in the previously withdrawn public records requests.

         The next day, August 13, 2014, Roper forwarded another set of requests for public records to Loupe, Welch, Marcelle, Amoroso, and Delgado. Like the previous requests, Roper again requested copies of communications between those individuals and others about Roper during the previous six years.[2] Shortly thereafter, similar requests were sent to Cashio, as council administrator/treasurer.[3]These requests for public records, sometimes collectively referred to as the "August requests, " are the subject of this litigation.

         On August 19, 2014, Murphy Foster, the attorney representing the Metro Council in the declaratory judgment litigation, sent a letter to Roper's attorney, Wade Shows, confirming that "[t]he people at the Metro Council responsible for responding to your client's Public Records Requests are working feverously to pull the requested documents together." Foster further advised that "[b]ecause the scope of the requests is so broad and the potential documents responsive to the requests are so voluminous, it may take another day or so before we can make them available."

         The search of the public records was handled by Eric Romero, the City/Parish's interim Information Services Director. Because of the uniformity of the search terms, the individual council members' records were searched by one global inquiry, which was completed on August 18, 2014. A separate search was conducted for the requests sent to the parish administrator, and it was completed on August 20, 2014. Romero delivered the results of the searches to the parish attorney's office.

         On August 25, 2014, Foster provided about 800 emails to Shows. The production of the emails was formally styled as a response to the discovery in the declaratory judgment proceeding. Less than two weeks later, the district court dismissed Roper's declaratory judgment suit, and on September 10, 2014, the council voted to terminate Roper's employment as parish attorney.

         No further communications were exchanged about the August requests until over two months later, when Roper sent an email to Foster on October 22, 2014, inquiring about the status of the responses.[4] Foster said he would notify Roper when the records were ready and advised that he had only received the August requests directed to Loupe and Amoroso. The pertinent communications thereafter are set forth in the following timeline:

10/30/14: Jennifer Sims, an attorney in Foster's office, emailed Roper and advised they were compiling the responsive documents and anticipated responses would be ready, at least in part, the following week.
11/5/14: Sims notified Roper that additional documents for Loupe, Delgado, and Amoroso should be partially ready later that week. Sims also advised that her office did not have a copy of the August requests sent to Marcelle and Welch. Roper responded and sent Sims a copy of the August requests for Marcelle and Welch.
11/6/14: In a letter emailed to Roper, Sims explained the public records search produced thousands of documents, and each must be reviewed to determine if it is a public record and, if so, whether it is privileged or otherwise exempt from production. Sims also explained that the review process had to be repeated for some records due to a defective jump drive. Roper was invited to review the documents vetted to date. Sims also emailed Shows and advised that 1, 932 emails were available for inspection or reproduction.
11/7/14: Sims notified Shows that additional records were available for inspection or production.
11/10/14: Sims notified Shows that additional documents were available for inspection and that Sims was still waiting on a response as to when Roper or Shows would like to inspect the documents.

         Roper did not inspect the available records. Instead, on November 10, 2014, she filed suit against the City/Parish and Cashio, and two days later against Loupe, Welch, Marcelle, Amoroso, and Delgado, alleging they arbitrarily and capriciously withheld the requested public records. Roper sought a writ of mandamus directing the defendants to produce the records, and requested awards for actual damages, civil penalties, attorney fees, and all costs, all pursuant to the Louisiana Public Records Act.[5]

         On November 26, 2014, Foster notified Shows that "[a]ll non-exempt records that are responsive to Ms. Roper's numerous public records requests are available for inspection and/or copying." Foster requested Shows contact him to arrange a mutually convenient date and time for the inspection or copying.

         The trial began on December 4, 2014. After receiving testimony from several witnesses, the trial court recessed the matter. About one week later, Roper went to Foster's office and picked up a flash drive containing 2, 213 pages of responsive documents. Roper, citing testimony indicating the search had produced significantly more documents, requested the trial court appoint an expert to review the entirety of the documents produced by the search to determine whether any withheld documents were exempt from production. The trial court granted the request and appointed Michael A. Patterson to review the documents and render a report.

         While the trial was still in recess, Foster's office provided Patterson with a copy of all documents generated by the search terms contained in Roper's requests, a total of about 57, 000 documents. After removing the documents already provided to Roper, Patterson and his staff, over the course of three months, reviewed the remaining documents to determine whether any should be produced. At the conclusion of his review, Patterson determined that 9, 000 of the remaining documents were responsive, non-exempt, and should be produced.

         The trial court then gave Foster's office an opportunity to review the 9, 000 documents identified by Patterson. After that review, defense counsel surmised that almost all of those documents were either duplicates of documents that had already been produced, or were not responsive to the requests, not public records, or were exempt by the attorney-client privilege. According to the defendants, only about 40 documents in the group of 9, 000 were responsive, non-exempt, and not previously produced. The trial court reviewed the documents and agreed with the defendants' assessment. The defendants produced the additional documents that were responsive and non-exempt, and, in an apparent effort to show full disclosure, also produced the documents they contended were duplicates, non-responsive, or not public records. The defendants withheld only the documents purportedly exempt by the attorney-client privilege.

         Roper requested an order directing the defendants to furnish a written notification of their determinations as to why each of the withheld records was not produced, including a reference to the basis under law which the custodian determined excepted each record, or part thereof, from inspection, copying, or reproduction. On October 5, 2015, the defendants provided an itemized list of the withheld documents, and later supplemented the list on October 29, 2015, to state the basis for withholding each document.

         The trial resumed on November-3, 2015, and concluded on November 5, 2015. Loupe, Delgado, Welch, and Amoroso each testified that upon receipt of the August requests for public records, they provided the requests to either the parish administrator or to Foster's office to prepare a response. Marcelle offered conflicting testimony, initially stating that she turned the matter over to the parish attorney's office, but later, when pressed, testified she could not remember if she routed the request to the parish attorney and confirmed she did not give it to Foster's office. Marcelle also acknowledged that when Roper emailed the August request to her, Marcelle responded with an email calling Roper's actions "harassment, " apparently because the email was sent to Marcelle's place of employment. When Marcelle was subsequently served with Roper's petition, she threw the pleading on the floor in front of the deputy sheriff who served her.

         After taking the matter under advisement, the trial court issued written reasons for judgment finding:

1. The defendants provided Roper with all non-exempt records; therefore, her request for a writ of mandamus is moot;
2. The defendants did not arbitrarily or capriciously fail to respond to the requests for public records, except for Marcelle, against whom the trial court imposed a civil penalty of $12, 000.00, plus attorney fees of $19, 707r50, and one-sixth of the court costs;
3. The defendants unreasonably failed to provide the notice required by Louisiana Revised Statute 44;32D, and, based on that finding, the trial court assessed a civil penalty of $4, 000.00 against each of the defendants;
4. Roper failed to prove any actual damages; and
5. The defendants are not entitled to reimbursement of the costs incurred to comply with the August requests.

          A judgment was signed on February 4, 2016, denying the request for a writ of mandamus, awarding Roper the relief identified above, together with legal interest thereon, and casting Roper with five-twelfths (5/12) of the court costs and court-appointed expert fees. The remaining court costs were allocated one-sixth (1/6) to Marcelle and one-twelfth (1/12) to each of the remaining defendants. Roper appealed, and the defendants answered the appeal, collectively seeking review of all of the aforementioned rulings by the trial court.

         DISCUSSION

         Overview of Public Records Act

         The right of access to public records is guaranteed by Article XII, Section 3 of the Louisiana Constitution, which provides that "no person shall be denied the right to . . . examine public documents, except in cases established by law." The Louisiana Public Records Act, codified at Louisiana Revised Statute 44:1, et seq., similarly mandates that "any person of the age of majority may inspect, copy, or reproduce any public record, " except as otherwise provided by law. See La. R.S. 44:3 lB(1). Because the right of access to public records is a fundamental right, guaranteed by the Constitution, access can be denied only when a law specifically and unequivocally provides otherwise. Deshotels v. White, 16-0889 (La.App. 1 Cir. 8/16/17), 226 So.3d 1211, 1218 (en banc), writ denied, 17-1565 (La. 12/5/17), 231 So.3d 628. Any doubt as to the public's right of access must be resolved in favor of the public's right to see. See Deshotels, 226 So.3d at 1218.

         The custodian of the record shall present it to any person of the age of majority who so requests. La. R.S. 44:32A. While the record generally must be made available "immediately, " the Act recognizes that some reasonable delay may be necessary to compile, review, and, when necessary, redact or withhold certain records that are not subject to production. See La. R.S. 44:33A & B(1); La. R.S. 44:3 5 A. Within five business days of the request, however, the custodian must provide a written "estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request." See La. R.S. 44:35A. If the custodian fails to ...


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