Civil District Court Judge Kern Reese heard arguments Thursday in The Lens’ lawsuit alleging the city has habitually violated the state’s public records law by not providing records within the limits allowed by law.
Reese listened to 30 minutes of reasoning from the City Attorney’s Office and Lens lawyer Scott Sternberg, of Baldwin Haspel Burke & Mayer. Reese did not immediately rule from the bench, saying that he plans to issue a judgment on Monday.
The Lens sued the city of New Orleans earlier this month, alleging the city frequently failed to fulfill public records in accordance with state law. The law says records that are available should be produced immediately, and those that are in active use should be provided within three days. The custodian of public records can also explain that a request will take longer and set a reasonable date by which it will provide the records.
Instead, the city sends a boilerplate response that says it has received the request and will let the requestor know when records might be ready, Sternberg said.
The nonprofit online news outlet filed the lawsuit asking the judge to do three things. First, The Lens wants the judge to order the city to produce records that The Lens requested weeks or months ago. Further, the lawsuit asked Reese to declare that the city has a pattern of not providing public records in a timely manner. Third, it also asked him to issue an injunction that would prevent city officials from continuing their practice of delayed compliance. The lawsuit named both the city and Mayor Mitch Landrieu.
The Lens names five outstanding public-records requests in its case, four of which were filled only after the lawsuit was filed, Sternberg said in court Thursday. The requests revolve around the city’s purchasing and payments system, and they sought such things as contracts and copies of invoices and checks.
The fifth, a months-old request for a copy of a city purchasing database, is outstanding, but The Lens met with the city Wednesday over the matter, and Sternberg said he thinks they have come to a resolution.
“So what are we fighting over still?” Reese asked.
Senior Chief Deputy City Attorney Cherrell Simms sought to have The Lens’ three legal actions separated.
“We’re seeking to sever the mandamus [demand for documents] and injunction action from the declaratory action, your honor,” Simms said.
But Reese didn’t directly respond, and the case continued.
Sternberg said the city’s process for reviewing and producing public records creates undue delays, not only for The Lens, but for the general public as well as other media outlets.
Further, complying with requests only after facing a lawsuit doesn’t mean that the city should avoid paying The Lens’ attorney fees and court costs, which the law allows for in public-records cases.
“The city producing those records does not moot our requests” for costs, or to say the city habitually violates the law, Sternberg said.
The lawsuit also lists several requests that were received weeks or months later — four months in one case — well beyond the three-day response time outlined in the law.
The city and Lens disagree on the length of time the city has to produce public records. The city maintains that its duty to protect private information can be time consuming and create delays, a position with which Reese appeared to empathize.
“We have a duty to segregate any public information from nonpublic information,” Simms said.
“The city, each year, receives about 1,000 public records requests,” Simms said. “The average time that it takes to produce those records is about 12 days.”
The Public Records Law encourages interpretation that errs on the side of transparency, and the burden is on the city to explain why a record is not public.
Sternberg called for Reese to order the city to comply with the law. If the city is not going to produce a record within three days, Sternberg asked they be required to tell the individual when they can expect the record.
“Your honor, no person should have to file a lawsuit in order to get public records.”
