by Nick Chrastil

The arguments of the state’s lawyers were ever-evolving. First, they contended that the contract could be kept secret because it contained the “mental impressions of attorneys.” Then, they argued it was protected under “attorney-client privilege,” and cited a “deliberative process” exemption that’s found nowhere in Louisiana law. 

Eventually, they claimed the contract didn’t exist at all, so why exactly did this merit a court hearing, anyway?

We ended up in 19th Judicial District Court in May because of a public-records request I made in March for a legal contract with high-powered Washington D.C. firm, WilmerHale, which was representing the state police in connection with a federal investigation into a pattern of racial discrimination and excessive force. 

Sitting in court with the lawyers from the Tulane First Amendment Clinic, who made our lawsuit possible, I was troubled. 

The state was trying to keep secret a taxpayer-funded agreement with a white-shoe law firm hired to defend a law enforcement agency that has a documented history of brutality and of hiding evidence to avoid accountability. 

The state also appeared to be claiming that all legal contracts at all levels of Louisiana government — totaling millions of dollars of taxpayer money each year — were not public records, and could be kept secret. Without such contracts, the public would have never known how much the state pays private attorneys to defend the abhorrent treatment of mentally ill prisoners in their custody, or how much the state spent defending its decision to transfer kids to a former death-row facility at Angola.

And these lawyers were making these arguments in The Lens’ case at a time when Governor Jeff Landry was pushing legislators to decimate the state public-records law.

Starting from the beginning

Let me start before we got into the courtroom and tell you exactly what I was looking for. 

The contract we sued for was the second state contract with WilmerHale. I had requested, and received the first contract after Liz Murrill, the state attorney general, announced the hiring of WilmerHale –  and specifically, former Trump DOJ official Ed O’Callaghan, who now works for the firm – to “engage the federal government” and do a “top-to-bottom” review of state police policies and practices. 

The first contract showed that the AG’s office was paying WilmerHale $750 an hour. That seemed like a lot of money. As I researched state law, I found that state agencies are only allowed to pay up to $500 an hour for legal contracts. 

I asked the AG’s office about this, and Murrill, through a spokesperson, said she would look into it.  

But a few weeks later, the AG spokesperson said that his office no longer had the contract with WilmerHale. He referred me to the Department of Public Safety (DPS), the agency that includes the state police.

In March, I submitted a public-records request for any contracts between WilmerHale and DPS.

A week later, DPS lawyers denied my request, citing one of the reasons that they would later argue in court. 

‘Receptive tone’ at initial hearing

At a hearing in May in front of Baton Rouge judge Eboni Johnson Rose, the First Amendment Clinic lawyers laid out The Lens’ argument. The judge said she would look at the contract provided to her by the state police and make a ruling in a month.

Maybe her receptive tone triggered action by the state. Because the day before our next court date, DPS lawyers handed over the contract, which showed WilmerHale’s rate to defend the state police: a staggering $1,000 per hour. 

Contract in hand, we still moved forward with the hearing, because we had asked  Judge Johnson Rose to rule that the contract — or the “draft” of the contract — was indeed a public record. On May 29, she agreed, and ordered DPS to pay attorneys fees. (A judge can award attorney’s fees to a plaintiff that has prevailed in a case where records were wrongfully withheld.)

Two days later, we published a Lens story informing the public of the $1,000 hourly fees paid for by taxpayers.

“Taxpayers should not be burdened by unreasonably high costs associated with defense of unconstitutional conduct by LSP,” Alanah Odoms, executive director of the ACLU of Louisiana, told me for the story. Odoms urged the state to instead spend the money on “training and resources to change its violent behavior.” 

The piece drew comments from a broad range of officials and advocates. “This ‘conservative’ administration hates public records requests,” commented former Republican State Rep. Barry Ivey on Twitter. 

I still have questions. What exactly are O’Callaghan and WilmerHale up to? Are they working to avoid federal oversight of the state police? What does that entail? 

Some of those answers will likely come from more public records. We don’t anticipate that getting them will be easy.