The Lens loses public records lawsuit against city of New Orleans

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An Orleans Parish judge has shot down The Lens’ lawsuit seeking that he declare that the city of New Orleans habitually fails to follow state public-records law because it doesn’t provide documents within the time frame outlined in the statute.

The law says records must be produced immediately, and if they’re in use, that a time must be set within three business days for citizens to review them. The city’s practice is to send a letter within three days stating that it is processing the request and that it would review records for anything that isn’t subject to public-records law.

Orleans Parish Civil District Judge Kern Reese appeared to support that practice. In his ruling, issued Monday, he wrote that the law is “NOT hard, fast and definite,” and that the city must screen records to remove private or privileged information.

The judge denied all three of The Lens’ requests in his ruling:

  • To order the city to produce records that The Lens requested weeks or months ago
  • To declare that the city has a pattern of not providing public records in a timely manner
  • To issue an injunction that would prevent city officials from continuing their practice of delayed compliance

The Lens’ suit named several requests that had gone unfilled, some dating back months, plus others that the city eventually provided after similar delays.

The city provided four of the five sets of records days after The Lens sued. On the last one, the city agreed in a meeting last week to try to provide the records The Lens seeks. That request, for the city’s purchasing and contracting database, was made in February; the city has denied multiple requests for portions of the database since last fall.

Although the city has not yet provided all the records named in the suit, Reese wrote in his ruling that all the requests have been filled.

Editor Steve Beatty said he’s disappointed with the outcome. “We’ll consider our options, but an appeal is certainly a possibility,” he said.

Scott Sternberg, The Lens’ lawyer, said the lawsuit did get the city to provide four of the five sets of records. And on the last one, “the city has agreed to do its best to get us the database of invoices and receipts that we have been seeking for months.”

The Lens firmly believes “that the city should provide records within the confines provided by law so that the people can review the work of their government,” Sternberg said.

Mayor Mitch Landrieu’s office did not immediately respond to a request for comment.

One of the delayed sets of records, sent to The Lens a week after it filed suit, showed that the city is paying a steep fee to a private company to collect delinquent taxes — more than double what another company charged a few years ago.

The Lens requested those records on March 10. The city turned them over May 19.

In an court hearing Thursday, Senior Chief Deputy City Attorney Cherrell Simms argued that the city must balance its responsibility to protect private information with the public’s right to view public records.

She told Reese that the city averages 12 days to respond to public records requests.

In his ruling, Reese agreed:

The Louisiana Public Records Law is NOT hard, fast, and definite. There are exceptions.
The court acknowledges that response time may vary depending upon the simplicity or
complexity of the request. Some responses may contain privileged information, attorney work
product, personal privacy information, etc. and therefore, must be screened to cull out such
information.

The law allows a public agency to take longer to provide records if it provides an “estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review” of a request. The city, however, does not provide an estimate.

Reese said delayed requests must be reviewed on a case-by-case basis “to ascertain if any unwarranted recalcitrance or other nefarious motivations are involved.”

However, he wrote, “should the constitutional mandates of access to public documents be abridged, such action will be dealt with accordingly.”

Adam Marshall, a legal fellow with Reporters Committee for Freedom of the Press, said he found the ruling “perplexing.”

Louisiana public records law sets a time limit of three days to produce records, he said. “And I think agencies, both in Louisiana and around the country, unfortunately, tend to treat the statutory time limit as suggestions rather than the law.”

Marshall said the issue raised in the lawsuit is important. “Timeliness is of utmost importance, not just for reporters but for the public. If the government isn’t responding, that not only harms them [the press] but does harm to the public because they aren’t getting the information they need to make informed decisions in a democratic society.”

Read the judge’s ruling


Reese Ruling (Text)

This story was updated after publication to include comments from the Reporters Committee for Freedom of the Press. (June 3, 2015)

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