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Maldonado v. Cannizzaro

Court of Appeals of Louisiana, Fourth Circuit

October 10, 2018

CHARLES MALDONADO
v.
LEON A. CANNIZZARO, JR. IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR ORLEANS PARISH

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-04660, DIVISION "L-6" Honorable Kern A. Reese, Judge.

          SCOTT L. STERNBERG MICHAEL FINKLESTEIN STERNBERG, NACCARI & WHITE, LLC COUNSEL FOR PLAINTIFF/APPELLEE

          DAVID M. FINK THE LAW OFFICE OF BERNARD L. CHARBONNET, JR., A PROFESSIONAL LAW CORPORATION -and- SCOTT G. VINCENT ASSISTANT DISTRICT ATTORNEY ORLEANS PARISH COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay III, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins.

          JAMES F. MCKAY III CHIEF JUDGE.

         In this mandamus action, defendant, Leon A. Cannizzaro, Jr., District Attorney for Orleans Parish ("D.A."), appeals the November 22, 2017 judgment ordering the D.A. to turn over certain files to plaintiff, Charles Maldonado ("Mr. Maldonado"), pursuant to his public records requests. Mr. Maldonado answered the appeal seeking a modification of the judgment, alleging that the trial court erred in not ordering production of all open files and in failing to find that the D.A. was arbitrary and capricious. Mr. Maldonado also seeks attorney's fees for work performed on this appeal.

         For the reasons that follow, we affirm the trial court's judgment and find no merit in the assignments of error set forth in Mr. Maldonado's answer to the appeal. We remand to the trial court for a determination of Mr. Maldonado's additional attorney's fees.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         On April 27, 2017, Mr. Maldonado, a staff writer with The Lens, [1] issued a public records request to the D.A. pursuant to the Louisiana Public Records Law, La. R.S. 44:1, et seq. The request sought "[a]ny and all 'D.A. Subpoenas' delivered to witnesses beginning Jan. 1, 2016 through the date of this request (4/27/17)."

         On May 2, 2017, the D.A. responded, in pertinent part, as follows:

In the present case, the request for "D.A. Subpoenas" delivered to witnesses is overly broad, particularly in light of the fact that the request involves a review of literally thousands of closed files, a substantial number of which are stored off-site. Therefore, compliance with your request would require this Office [sic] manually review thousands of files stored on premises and off-site, the retrieval fee for which is $8.10 per file. Given the potential volume of the records that would have to be reviewed in order to respond to your request, the fact that the records cannot [sic] are not readily identifiable and locatable, and the retrieval costs involved, the District Attorney's Office submits that obtaining the records requested by you and preparing them for public review, including redacting and removing privileged information and documentation therefrom and determining whether there is a potential for further criminal litigation, would be unreasonably burdensome. Accordingly, your request is denied at this time.

         On May 15, 2017, Mr. Maldonado filed a Petition for Writ of Mandamus against the D.A., seeking to compel production of the requested records. The petition sought attorney's fees and costs pursuant to La. R.S. 44:35(D) and alleged that the D.A. was arbitrary and capricious in failing to respond to the records request.

         On May 22, 2017, Mr. Maldonado issued a second records request to the D.A. as follows:

Any and all records related to the use of so-called "DA Subpoenas," including but not limited to log entries, records showing time of service, records of returns, files in a computerized or paper filing system, meeting notes with witnesses who received them, any other case notes reflecting their use, written communications with witnesses who received them, written communications with attorneys for those witnesses, written communications with others regarding "DA subpoenas," and other records maintained by ADAs, clerks, secretaries or by the DA's office regarding their use. Timeframe for this request is January 1, 2016-present (May 22, 2017).
On May 25, 2017, the D.A. responded, in pertinent part, as follows:
The records request fails to describe a specific public record in the Orleans Parish District Attorney's Office's custody or control. The Orleans Parish District Attorney's Office does not maintain a copy of subpoenas in a particular file or location, nor does the District Attorney's Office maintain a list of cases in which a subpoena was issued. Under the Public Records Law, a records custodian is not required to compile a list in order to respond to a public records request. Rather, the custodian need only make the record available in the particular format in which it is maintained. (Citations omitted).

         The May 25, 2017 response further reiterated that the records request was overly broad, burdensome, and expensive. [2]

         The parties met on May 25, 2017, in an attempt to resolve the matter. The D.A. requested that Mr. Maldonado submit a narrower records request.

         Following the meeting, Mr. Maldonado submitted a third records request on May 30, 2017, seeking the following:

Any and all "DA subpoenas" issued to witnesses or other parties as part of the following cases:
State of La. v. Dale Lambert, case number 517-162
State of La. v. Chevroun Smith, case number 514-924
State of La. v. Phillip Gibson, case number 506-743
State of La. v. Karl Peters, case number 491-939
State of La. v. Darryl Griffin, case number 479-359
State of La. v. Durelle Bowens, case number 507-266
State of La. v. Dwayne Diaz, case number 518-162
State of La. v. Jennifer Gaubert, case number 517-669
State of La. v. Nathaniel Payton, case number 486-528
State of La. v. Jerome Gibson, case number 512-137

         Mr. Maldonado has acknowledged that the D.A. made six of the requested case files available for viewing.

         Also on May 30, 2017, Mr. Maldonado requested all D.A. subpoenas maintained or saved in the personal case notes or computer files of Assistant District Attorneys Jason Napoli, Laura Rodrigue, Inga Petrovich, and Sara Dawkins from December 1, 2016, through May 30, 2017. On June 2, 2017, the D.A. responded, stating that the personal case notes were not subject ...


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