Orleans Parish District Attorney Leon Cannizzaro is asking the Supreme Court of Louisiana to review a state appeals court decision that ordered his office to produce fake subpoenas, the legally worthless documents used for decades to convince reluctant witnesses to speak with prosecutors.
The DA’s office maintains Lens Editor Charles Maldonado’s April 2017 public records request is overly burdensome, even after a district court judge narrowed the request in his order. The district and appellate court have both argued the public agency’s duty transcends the workload it will require.
Now, Cannizzaro argues the state’s highest court must weigh in on what he describes as two fundamental issues. First, he asks the court to clarify whether public records requests must match the way public entities store their records. For example, during testimony in 2017, Assistant District Attorney Donna Andrieu, said Maldonado’s request — for all DA subpoenas over a period of time— didn’t match how the office kept its files — by case number.
The office organizes its files by case, she said. “We don’t have a filing cabinet full of DA subpoenas—or any other document.”
State public records law requires an agency make public records available, however they are stored, unless they are subject to an exception to the law. Because the subpoenas had not gone before a judge, they weren’t formally recorded in case records. Beyond a handful of cases in which defense and witness attorneys had become aware of their existence, there was no way for The Lens to determine which cases had them and which cases didn’t.
Secondly, Cannizzaro asks the court to answer whether state Public Records Law “obligates a public entity to comply” with a request that will require significant time and money.
Cannizzaro said his office has spent more than $118,000 to pull case files from storage and thousands of man hours to review them.
Public records advocates argue time, money, and sloppy record keeping can’t be an excuse to keep public records private. In fact, it could create a reverse incentive, they’ve argued.
Lens attorney Scott Sternberg, of Sternberg, Naccari and White said Cannizzaro should produce the records.
“A number of judges have said the district attorney had to turn over these records,” Sternberg said. “And he continues to appeal it.”
“It certainly doesn’t seem like a great use of taxpayer resources at this point when he can just turn over the records.”
Earlier this month, a Fourth Circuit appeals panel agreed with Civil District Court Judge Kern Reese, in effect ordering Cannizzaro’s office to produce any remaining fake subpoenas from the 16-month window Maldonado initially requested.
After the office refused to provide fake subpoenas in response to an April 2017 public records request, The Lens sued. In his October 2017 ruling, Reese ordered Cannizaro’s office to “eat the elephant one bite at a time” and start producing DA subpoenas in closed cases and cases that the DA’s office had rejected in that 16-month window.
But after combing through thousands of case files and providing one subpoena to The Lens, the DA’s office appealed Reese’s order.
Even as Reese’s order was put on hold, pending the outcome of the Fourth Circuit appeal, the DA’s office was combing through tens of thousands of cases to find fake subpoenas prosecutors had used. That effort came as a response to a request from the New Orleans City Council for a tally of DA subpoenas issued between 2014 and 2016.
This summer, the office located an additional 249 fake subpoenas from that period and provided them to The Lens.
Those 249 fake subpoenas only partially satisfy Maldonado’s April 2017 public records request, from which the lawsuit stems.
For years, Cannizzaro’s office used the phony documents to compel witnesses and crime victims to appear for private interviews with prosecutors by threatening fines and jail time. That’s something they’re allowed to do — but they must first ask a judge for permission under Article 66 of the state Code of Criminal Procedure. That’s the state law that allows prosecutors to subpoena witnesses for private interviews.
The most recently used format contained a reference to Article 66, but the “DA subpoenas” in question were not approved by a judge.
The office stopped using the documents the day The Lens reported on their existence.
