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Stevens v. St. Tammany Parish Government

Court of Appeals of Louisiana, First Circuit

July 18, 2018

TERRI LEWIS STEVENS AND JENNIFER FRUCHNICHT, WIFE OF/AND CRAIG RIVERA
v.
ST. TAMMANY PARISH GOVERNMENT

          On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana No. 2015-11727, Honorable Allison H. Penzato, Judge Presiding.

          James L. Bradford, III Kirk N. Aurandt D. Stephen Brouillette, Jr. Covington, Louisiana, Counsel for Defendant/ Appellant St. Tammany Parish Government.

          Louis R. Koerner, Jr. New Orleans, Louisiana and James E. Blazek Lacombe, Louisiana, Counsel for Plaintiffs/ Appellees/ Cross -Appellants Terri Lewis Stevens.

          BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

          McCLENDON, J.

         In this mandamus action, the defendant appeals the trial court judgment that granted, in part, the plaintiff's requests for public records and awarded the plaintiff attorney fees and costs. The plaintiff answered the appeal seeking a modification of the judgment, alleging that the trial court failed to order the production of all documents as requested, failed to award damages and penalties, and erred in its calculation of attorney fees. For the reasons that follow, we affirm.

         FACTUAL AND PROCEDURAL HISTORY

         This case arises out of a dispute over certain public record requests (PRRs) that the plaintiff, Terri Lewis Stevens, submitted to the defendant, St. Tammany Parish Government (the Parish).[1] Ms. Stevens's mandamus claims are related to a separate action she filed against the Parish regarding drainage problems on her property in Dove Park Road Subdivision in St. Tammany Parish.[2] In her Petition for Mandamus and Attorney's Fees, filed on April 1, 2015, Ms. Stevens prayed that writs of mandamus issue, ordering the Parish to produce documents in eight separate PRRs that Ms. Stevens alleged were either improperly withheld or not produced. She also requested damages, civil penalties, attorney fees, and costs.

         The mandamus hearing was originally set for May 21, 2015, but the matter was reset and then continued pending mediation between the parties. Mediation did not occur, and, on September 3, 2015, the Parish filed a motion for summary judgment seeking the dismissal of Ms. Stevens's claims. Following a hearing, the trial court denied the motion for summary judgment as to all but one of the PRRs.[3]

         As to Ms. Stevens's remaining claims for mandamus, the trial court held a three-day trial, after which the matter was taken under advisement. On August 31, 2016, the trial court issued its written reasons for judgment and, on September 7, 2016, signed its judgment. The trial court dismissed Ms. Stevens's claims as to two of the PRRs, but found that she was entitled to the issuance of a writ of mandamus with regard to the five remaining PRRs. The trial court also denied Ms. Stevens's claims for civil penalties and held that, by agreement of the parties, the issues of damages regarding one of the PRRs and of attorney fees were held open to be set for hearing upon motion of either party.

         Both parties filed motions for a new trial. After a status conference, the trial court found, and the parties agreed and stipulated, that there were additional matters to be included in the trial court's judgment before it was a complete and final judgment ready for appeal. Accordingly, on October 13, 2016, the motions were granted, in part, and the September 7, 2016 judgment was vacated.

         Thereafter, Ms. Stevens filed a motion to fix attorney fees, costs, and damages, which was set for hearing. The Parish opposed the motion. Following the hearing and after supplemental briefing, the trial court, on February 10, 2017, issued Supplemental Reasons for Judgment. On February 27, 2017, the trial court signed its judgment that dismissed two of Ms. Stevens's PRRs; granted her mandamus relief with regard to five PRRs, ordering the Parish to produce or allow inspection of the requested documents in the Parish's possession in accordance with the court's compliance plan; denied Ms. Stevens's requests for damages; and awarded Ms. Stevens $20, 000.00 in attorney fees and $1, 646.09 in costs. The trial court's extensive and thorough reasons for judgment are incorporated herein and attached for further reference. See Attachment A and Attachment B.

         After the denial of the motions for new trial filed by both parties, the Parish filed a suspensive appeal, and Ms. Stevens answered the appeal. The Parish contends that the trial court erred in issuing a writ of mandamus as to the five PRRs and in its legal conclusion that Ms. Stevens was denied access to public records. It also maintains that the trial court abused its discretion in awarding Ms. Stevens attorney fees and court costs. In her answer to the appeal, Ms. Stevens raises several issues, including the dismissal of two of her PRRs, the denial of her motion for new trial, the application of an alleged improper burden of proof, the failure of the trial court to address certain issues, the lawfulness of the court's compliance plan, the denial of damages and penalties, and the amount of attorney fees awarded.

         APPLICABLE LAW

         Article XII, § 3 of the Louisiana Constitution provides that "[n]o person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law." Moreover, the right of access to public records is a fundamental right guaranteed by LSA-Const. art. XII, § 3 of the Louisiana Constitution, and whenever there is any doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right of access. New Orleans Bulldog Society v. Louisiana Society for the Prevention of Cruelty to Animals, 16-1809 (La. 5/3/17), 222 So.3d 679, 683; Landis v. Moreau, 00-1157 (La. 2/21/01), 779 So.2d 691, 694. The legislature has codified this right in Louisiana's Public Records Law, LSA-R.S. 44:1, et seq[4]

         The right to examine records in the Public Records Law is found in LSA-R.S. 44:31, which provides:

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.
(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.

         The legislature, in the Public Records Law, sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. Angelo Iafrate Const., L.L.C. v. State ex rel. Dept. of Transp. and Development, 03-0892 (La.App. 1 Cir. 5/14/04), 879 So.2d 250, 254, writ denied, 04-1442 (La. 9/24/04), 882 So.2d 1131. There was no intent on the part of the legislature to qualify, in any way, the right of access. As with the constitutional provision, the Public Records Law should be construed liberally, and any doubt must be resolved in favor of the right of access. Id.; Landis, 779 So.2d at 694-95.

         The right of access to public records is fundamental; therefore, access may be denied only when the law specifically and unequivocally denies access. Hilliard v. Litchfield, 01-1987 (La.App. 1 Cir. 6/21/02), 822 So.2d 743, 746. All exceptions, exemptions, and limitations to the laws pertaining to public records and their disclosure pursuant to the Public Records Law must be provided for in the Law or in the Louisiana Constitution. See LSA-R.S. 44:4.1[5]; Angelo Iafrate Const., L.L.C., 879 So.2d at 254. Therefore, it follows that any exemption to the Public Records Law is in derogation of the public's right to be reasonably informed and must be narrowly interpreted. Id.; Times Picayune Pub. Corp. v. Board of Sup'rs of Louisiana State University, 02-2551 (La.App. 1 Cir. 5/9/03), 845 So.2d 599, 605, writ denied, 03-1589 (La. 9/5/03), 852 So.2d 1044.

         When doubt exists about the right to access certain records, the doubt must be resolved in favor of the public's right to see. A claim of annoyance, embarrassment, oppression, or undue burden or expense is not enough to overcome the public's right of access to public records. In re Kemp, 45, 028 (La.App. 2 Cir. 3/3/10), 32 So.3d 1050, 1054, writ denied, 10-0755 (La. 6/25/10), 38 So.3d 338 (citing Copeland v. Copeland, 07-0177 (La. 10/16/07), 966 So.2d 1040).

         The custodian of the record shall present it to any person of the age of majority who so requests. LSA-R.S. 44;32A. While the record generally must be made available "immediately," the Public Records Law 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 LSA-R.S. 44:33[6]; Roper v. City of Baton Rouge/Parish of East Baton Rouge, 16-1025 (La.App. 1 Or. 3/15/18), __So.3d__, __. 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 LSA-R.S. 44;35A[7]; Roper, __So.3d at__.

         The Public Records Law requires a written notification when a custodian determines that a requested record is not subject to production. This notification is mandated by LSA-R.S. 44;32D, which provides:

In any case in which a record is requested and a question is raised by the custodian of the record as to whether it is a public record, such custodian shall within three days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of the request, in writing for such record, notify in writing the person making such request of his determination and the reasons therefor. Such written notification shall contain a reference to the basis under law which the custodian has determined exempts a record, or any part thereof, from inspection, copying, or reproduction.

         Enforcement of the Public Records Law is primarily governed by LSA-R.S. 44:35. If the person seeking the right to inspect or to receive a copy of the public record prevails in his enforcement suit, the court shall award him reasonable attorney fees and other litigation costs. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof. LSA-R.S. 44;35D. In certain circumstances, a plaintiff may also recover actual damages and civil penalties under LSA-R.S. 44;35E(1), which provides:

If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.

         The first sentence of LSA-R.S. 44;35E(1) provides for actual damages if the custodian arbitrarily or capriciously withheld the requested record or failed to respond. In contrast, the trigger for a discretionary award of civil penalties in the second sentence is the failure of the custodian to properly respond to a requester within the three-day statutory period. The trial court must also find that the custodian's failure to respond to the requester was unreasonable or arbitrary. Deshotels v. White, 16-0889 (La.App. 1 Cir. 8/16/17), 226 So.3d 1211, 1219 (en banc), writ denied, 17-1565 (La. 12/5/17), 231 So.3d 628. See also LSA-R.S. 44;32D; Capital City Press, L.L.C. v. Louisiana State University System Bd. of Sup'rs, 13-2001 (La.App. 1 Cir. 12/30/14), 168 So.3d 727, 743-44, writ denied, 15-0209 (La. 4/17/15), 168 So.3d 401.

         It is well established that the examination of records or requests for reproduction cannot be so burdensome as to interfere with the operation of the custodian's constitutional and legal duties. Elliott v. District Attorney of Baton Rouge, 94-1804 (La.App. 1 Cir. 9/14/95), 664 So.2d 122, 126, writ denied, 95-2509 (La. 12/15/95), 664 So.2d 440. See also Beckett v. Serpas, 12-1349 (La.App. 4 Cir. 3/20/13), 112 So.3d 348, 353; Vandenweghe v. Parish of Jefferson, 11-52 (La.App. 5 Cir. 5/24/11), 70 So.3d 51, 58, writ denied, 11-1333 (La. 9/30/11), 71 So.3d 289. Nevertheless, any restriction or limitation imposed by the custodian places the burden on the custodian to justify the restriction or limitation. LSA-R.S. 44;35B; Title Research Corporation v. Rausch, 450 So.2d 933, 937-38 (La. 1984); Elliott, 664 So.2d at 126.

         Louisiana Code of Civil Procedure article 3863 also provides that a writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. A writ of mandamus is not an appropriate procedure where there is an element of discretion left to the public officer. Vandenweghe, 70 So.3d at 58.

         DISCUSSION

         The Public Record Requests

         In its appeal, the Parish argues that the trial court erred in issuing a writ of mandamus as to the five PRRs and in its legal conclusion that Ms. Stevens was denied access to public records. The Parish maintains that the five PRRs were overly broad, unduly burdensome, and of such a nature that they could not be practically responded to without negatively interfering with the records custodian's constitutional and legal duties. The Parish argues that there is a fine line between the right of the public to access public records and the potential harassment, disruption, and interference with the custodian's performance of constitutional and legal duties when the public records request process is abused. The Parish further contends that it did not ignore Ms. Stevens's requests and went above and beyond its legal duties in responding to her PRRs by communicating with Ms. Stevens in a good-faith attempt to narrow and refine her requests. Therefore, according to the Parish, Ms. Stevens should not have prevailed in this mandamus action on any of her requests. In response, Ms. Stevens maintains that she made specific requests that were not overly burdensome and to which the Parish intentionally failed to respond.

         Initially, we find no error in the trial court's determination that the Parish did not violate the Public Records Law in connection with PRR 4716 and PRR 5025, as asserted by Ms. Stevens in her answer to the appeal. The trial court carefully considered both requests and concluded that the Parish produced what it had in its possession in response to the requests. We have thoroughly reviewed the record and can find no manifest error in this factual finding of the trial court. See Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993); Roper, __So.3d at__.[8] However, the trial court determined that the Parish improperly responded to PRRs 5334, 5335, 5336, 5338, and 5367, which the Parish has appealed. Again, upon our review of the record, we cannot say that the trial court manifestly erred or was clearly wrong in these factual findings. The trial court considered all of the evidence presented and gave detailed reasons for judgment that are supported by the record. The trial court tailored a solution considering the complexities and the expansive time frames of the production requests.

         The trial court further found that the Parish did attempt in good faith to work with Ms. Stevens with the production of the voluminous documents and concluded that the Parish did not act arbitrarily or capriciously as to PPRs 5334, 5335, 5336, and 5338. However, with regard to PRR 5367, the trial court determined that the Parish arbitrarily withheld the contracts and insurance certificates.[9] The contracts were produced three months after the Parish offered to provide them, and the insurance certificates were ultimately produced at trial. Again, upon our review, we cannot say that these findings are manifestly erroneous or clearly wrong.

         Ms. Stevens also complains that the Public Records Law does not allow compliance with the requests over a period of time as ordered by the trial court. However, considering the evidence at trial regarding the breadth of the requests and the difficulties of the multi-department searches, as well as the impact on the Parish's normal business operations, we find the court monitoring plan appropriate. See LSA-R.S. 44:33 and LSA-R.S. 44;35A. Further, we find no merit to the related arguments of Ms. Stevens in her answer to the appeal regarding the PRRs. Specifically, we find no merit to Ms. Stevens's assignments of error that the trial court erred in denying her motion for new trial, that the trial court used an improper burden of proof, or that the trial court failed to address certain issues raised by Ms. Stevens.

         Penalties. Damages, and Attorney Fees

         Ms. Stevens next contends that the trial court erred in failing to award her damages and penalties. As to her request for penalties, civil penalties are authorized only when a custodian unreasonably or arbitrarily fails to respond to the public records request within the three-day statutory period. However, the Parish responded to each of the seven PRRs within three days, and the trial court so found. Accordingly, there was no failure to respond to the request as required by LSA-R.S. 44:32, and civil penalties were not appropriate.

         With regard to damages, LSA-R.S. 44;35E(1) provides for actual damages if the custodian arbitrarily or capriciously withheld the requested record. After having found that the Parish acted arbitrarily in failing to timely produce the contracts and insurance certificates in response to PRR 5367, the trial court found that Ms. Stevens failed to introduce any evidence to prove that she suffered any actual damages resulting from the actions of the Parish. We find no error in this finding of the trial court.

         Regarding the award of attorney fees and costs to Ms. Stevens, the Parish contends that the trial court abused its discretion. The Parish asserts that because the trial court erred in finding that it failed to properly respond to the five PRRs, Ms. Stevens is not entitled to an award for attorney fees and costs under the provisions of LSA-R.S. 44;35D. Alternatively, the Parish maintains that should Ms. Stevens prevail on any of the PRRs on appeal, the trial court abused its discretion in awarding her attorney fees and costs, arguing that Ms. Stevens was unsuccessful on some of the PRRs, that she made the case needlessly expensive, and that the requests were aggressively burdensome. Therefore, according to the Parish, the facts of the case do not support a discretionary award of attorney fees, and each party should bear their own costs and fees. To the contrary, Ms. Stevens maintains that the trial court did not err in awarding attorney fees and, in fact, erred in not awarding a greater amount of attorney fees.

         Louisiana Revised Statutes 44;35D provides:

If a person seeking the right to inspect, copy, or reproduce a record or to receive or obtain a copy or reproduction of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof.

         The trial court found that Ms. Stevens prevailed in part and awarded her $20, 000.00 in attorney fees. On appeal, we found no error in the dismissal of two of the PRRs, but also found no error in the trial court's conclusion that the Parish improperly responded to the remaining five PRRs, which resulted in the issuance of a writ of mandamus. Accordingly, the Parish's argument that Ms. Stevens was not legally entitled to any award of attorney fees and costs because she was unsuccessful lacks merit.

         Nevertheless, we acknowledge that where a party is only partially successful in a suit for the production of public records, attorney fees are not mandated, but are discretionary. See LSA-R.S. 44;35D. And, while, under the unique facts of this case, we would not have found an award of attorney fees appropriate if sitting as the trial court, we are unable to say that the trial court abused its discretion in making said award. Further, with regard to the amount of attorney fees awarded, we cannot say that the trial court abused its vast discretion.

         Lastly, in her appellate brief, Ms. Stevens has asked for attorney fees on appeal. Louisiana Code of Civil Procedure article 2133A provides, in pertinent part:

An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.

         An appeal imposes certain costs and formalities on the appellant not required of an appellate answer. An answer to an appeal is a much less costly and complex procedure. However, the tradeoff is that under LSA-C.C.P. art. 2133 the answer must state what the "relief demanded" is, and the answer operates as an appeal only from those matters "of which he complains in his answer." LSA-C.C.P. art. 2133. See Clark v. Schwegmann Giant Supermarket, 96-2301 (La.App. 4 Cir. 1/13/99), 740 So.2d 137, 142. Because Ms. Stevens did not include a request for attorney fees on appeal in her answer to the appeal, we decline to award her same.

         We have carefully examined the record and affirm the judgment of the trial court.

         CONCLUSION

         For the foregoing reasons, we affirm the February 27, 2017 judgment of the trial court. Costs of this appeal in the amount of $6, 234.45 shall be shared equally between the parties.

         AFFIRMED.

         REASONS FOR JUDGMENT

         This matter came on for trial on the merits on February 29, March 29 and March 30, 2016. Upon the conclusion of trial, the Court ordered post-trial memoranda, and thereafter took the matter under advisement The Court, having considered all of the evidence submitted herein, the testimony at trial, together with the entire record of these proceedings, makes the following findings in these Reasons for Judgment.

         Plaintiffs initially filed a Petition for Injunctive Relief [1]on February 18, 2015, which included a request for a writ of mandamus for the Parish's failure to comply with the Public Records Act. That matter was set for hearing on February 25, 2015, and was continued by agreement of counsel to March 27, 2015. On March 27, 2015, the plaintiffs dismissed without prejudice the mandamus action, which was re-filed on April 1, 2015[2]. By Order dated June 3, 2015, both the injunction and mandamus action were referred for mediation by agreement of the parties. Mediation did not take place, and this mandamus action initially came before the Court on a motion for summary judgment filed by the defendant, which was granted in part and denied in part. Following same, trial on the remaining Public Records Requests was set and took place on the dates noted above.

         LOUISIANA PUBLIC RECORDS LAW

         The Louisiana Constitution Article 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.S. 44:31 provides as follows;
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.
(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.

         La, R.S. 44:32 provides as follows:

A. The custodian shall present any public record to any person of the age of majority who so requests. The custodian shall make no inquiry of any person who applies for a public record, except an inquiry as to the age and identification of the person and may require the person to sign a register and shall not review, examine or scrutinize any copy, photograph, or memoranda in the possession of any such person; and shall extend to the person all reasonable comfort and facility for fee full exercise of the right granted by this Chapter; provided that nothing 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 examinations of records under the authority of this Section must be conducted during regular office or working hours, unless the custodian shall authorize examination of records in other than regular office or working hours. In this event the persons designated to represent the custodian during such examination shall be entitled to reasonable compensation to be paid to them by the public body having custody of such record, out of funds provided in advance by the person examining such record in other than regular office or working hours.
B. If any record contains material which is not a public record, the custodian may separate the nonpublic record and make the public record available for examination.
C. (1)(a) For all public records, except public records of state 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....
(d) Any person, as provided for in R.S. 44:31, may request a copy or reproduction of any public record and it shall be the duty of the custodian to provide such copy or reproduction to the person so requesting.
(2) 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.S. 39:241.
Copies 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. Copies of records may be famished without charge or at a reduced charge to indigent citizens of mis state or the persons whose use of such copies, as determined by the custodian, will be limited to a public purpose, including but not limited to use in a hearing before any governmental regulatory commission.
(3) No fee shall be charged to any person to examine or review any public records, except as provided in this Section, and no fee shall be charged for examination or review to determine if a record is subject to disclosure, except as may be determined by a court of competent jurisdiction.
D. In any case in which a record is requested and a question is raised by the custodian of the record as to whether it is a public record, such custodian shall within three days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of the request, in writing for such record, notify in writing the person making such request of his determination and the reasons therefor. Such written notification shall contain a reference to the basis under law which the custodian has determined exempts a record, or any part thereof, from inspection, copying, or reproduction.

         La. R.S. 44:33 states, in pertinent part:

A. (1) When a request is made for a public record to which the public is entitled, the official.., who has responsibility for the record shall have the record segregated from other records under his custody so that the public can reasonably view the record.
(2) If, however, segregating the record would be unreasonably burdensome or expensive, or if the record requested is maintained in a fashion that makes it readily identifiable and renders further segregation unnecessary, the official shall so state in writing and shall state the location of the requested record.
B. (1) If the public record applied for is immediately available, because of its not being in active use at the time of the application, the public record shall be immediately presented to the authorized person applying for it If the public record applied for is not immediately available, because of its being in active use at the time of the application, the custodian shall promptly certify this in writing to the applicant, and in Ms certificate shall fix a day and hour within three ...

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