On Wednesday, a federal judge shot down a proposal by Orleans Parish Sheriff Susan Hutson that the other parties in the New Orleans  jail’s long-running consent decree should have to sign a non-disclosure agreement to protect the information that the Sheriff’s Office is required to share with them as part of the ongoing litigation meant to bring the jail up to constitutional standards.

“I don’t know who thought that was a good idea,” Eastern District of Louisiana Magistrate Judge Michael North said of the proposed NDA during a court hearing, “but it wasn’t.”

Hutson, who attended Wednesday’s hearing, suggested the NDA in a court filing in late October, saying it was necessary to protect the integrity of confidential information and calling it the “first step in providing a more comprehensive and timely accounting of incidents and ongoing investigations.”

The proposal came after repeated admonishments by North and other parties in the consent decree over lack of transparency from Hutson’s administration regarding incidents at the jail, including two deaths that took place in June, a several-day protest by detainees in August, and a shakedown conducted by Louisiana Department of Public Safety and Corrections officers at the facility in September. 

And in response, civil rights attorneys with the Roderick and Solange MacArthur Justice Center representing people incarcerated in the jail and lawyers representing the United States Department of Justice both said they were alarmed by the suggestion that an NDA was necessary after over a decade of litigation, and that procedures were already in place to protect privileged information. 

North also took serious issue with language used in a draft NDA filed by the Sheriff’s Office, which stated that “all information disclosed by the Sheriff…shall be considered confidential unless expressly stated otherwise by the Sheriff.” 

He said that giving the sheriff sole authority to determine what is and isn’t confidential information related to the case was “never going to happen.”

“Never,” North said. “It’s probably against the law.” 

The language, he said, was “inconsistent” with the office’s contention that the NDA was about protecting confidential information related to detainees’ records and ongoing internal investigations, and undermined claims by Hutson that her office was committed to transparency – a key feature of her campaign for sheriff just last year.

Graham Bosworth, an attorney for OPSO, said that the draft was not final and was only a starting point for a conversation about a potential NDA.

“Let us consider that conversation started and finished,” North said. 

Records delays

In addition to opposing the NDA, civil rights attorneys with MacArthur also filed a motion asking the court to force Hutson’s office to turn over documents and records related to incidents in the jail, which they say they have asked for repeatedly but have not been provided. Those records include use of force reports, staff logbooks and assignments, and detainee disciplinary write-ups related to the two jail deaths, protest, and shakedown. 

On Wednesday, Elizabeth Cumming with MacArthur said that while they sometimes did not get records as quickly as they wanted under prior Sheriff Marlin Gusman’s administration, it has gotten worse with Hutson.

“I can’t recall when we’ve had delays this extreme,” she said. 

Graham Bosworth said that the office was committed to providing information as quickly as possible, but some of the records requested by MacArthur either didn’t exist or had not yet been produced because investigations were still ongoing. But North pointed out that many of the records should be currently available.

Some of the dispute seemed to stem from OPSO providing information via a record sharing website,  which only allowed attorneys with limited access to records. Cumming said that some reports weren’t able to be downloaded, and others they couldn’t view at all.

Bosworth said that some of the issues were caused by the fact that the jail’s data management system was badly out of date. But he said that the attorneys could come to the jail to view records in person, and said that he had offered to set up a work station within the facility. 

North said that he would grant the motion filed by MacArthur ordering OPSO to turn over whatever records were still outstanding, but what he really wants is for the parties to develop procedures for data sharing so that there aren’t issues in the future. 

“You all need to sit down at a table like adults, find out what they don’t have that they’ve asked for, and find out how to get it to them,” North said. “I am not implying or suggesting that there is an effort to hide anything.” 

North also followed up regarding a staffing plan from OPSO, which the office has repeatedly said it was in the process of completing. Back in October, Bosworth said that it would be submitted to the court within two weeks. 

But that still hasn’t happened. At a budget hearing last month, Hutson told the City Council that her office had a draft staffing plan that they were working on, but it had not been finalized. 

On Wednesday, Bosworth told the court that the plan was almost completed, and would be submitted in the “next few days.”