RICHARD MAHONEY, VERSUS KATHY KLIEBERT, SECRETARY OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES OF THE STATE OF LOUISIANA, SUIT NUMBER 2 19TH JUDICIAL DISTRICT COURT Plaintiff, PARISH OF EAST BATON ROUGE Defendant. PETITION FOR AN ALTERNATIVE WRIT OF MANDAMUS, FEES, COSTS AND DAMAGES NOW INTO COURT, pro se, comes plaintiff, Richard Mahoney, (hereinafter ?Plaintiff?), a person of the full age of majority and a resident and domiciliary of East Baton Rouge Parish, Louisiana, who respectfully represents as follows: 1. NATURE OF SUIT Plaintiff brings this mandamus action pursuant to La. C.C.P. art. 3861, et seq, and in reliance upon La. RS. 44:35 (the ?Public Records Law?) and 5 U.S.C.A. 552(6)(C)(i) (the of Information Act?), and seeks an alternative writ of mandamus ordering the .J Lu. ages-ins civil :3 0- cm. he??pro?ce certain public records or to show cause to the contrary. Plaintiff also seeks OF an award ?n reasonable attorneys fees, costs of lltigation, and an appropriate amount 1n nalty, as all provided by the applicable statutes. CLE 2. Named defendant herein is Kathy Kliebert (hereinafter ??Defendant?), individually and in her capacity as Secretary of the Department of Health and Human Services of the State of Louisiana (hereinafter who is the chief of?cer, agent, and employee DHHS, and a person of the full age of majority and a resident and domiciliary of East Baton Rouge Parish, Louisiana, whose post office address is PO. Box 629, Baton Rouge, Louisiana 70821, and whose physical address is 628 N. 4th Street, Baton Rouge, Louisiana 70802. 3. VENUE Defendant?s principal offices are located in the City of Baton Rouge, East Baton Rouge Parish, Louisiana, and venue is proper in this Court under La. RS. 44:3 4. we. DHHS is a department of the State of Louisiana and a public body that is included Within the scope of the Louisiana Public Records Law (La. RS. 4421, el? seq). Defendant Kliebert, as the Secretary of DHHS, is a ?custodian? of the public records of DHHS, and is ultimately responsible for responding to any citizen?s request to examine the public records. La. RS. Defendant Kliebert has an af?rmative duty to allow inspection of said public records. La. RS. 40:32. 5. DHHS is required to collect certain veri?ed information for each abortion performed in Louisiana, within thirty days after the date of each abortion, pursuant to La. RS. and (D). Included in this information is the age of each patient. Id. at La. RS. 40:64. To collect this statutorily required vital information, DHHS utilizes a form entitled, ?Report of Induced Termination of Pregnancy.? (See Exhibit attached hereto.) La. RS. 40:64 further requires abortion providers to obtain and report the age of each unborn child?s biological father. 6. DHHS is further required to collect all abortion reports and to collate and evaluate all data gathered therefrom, and to annually publish a statistical report based on the data obtained. La. RS. 7. La. RS. 40:63 provides that the purposes of collecting certain information for each abortion performed in Louisiana ?shall be the compilation of relevant maternal life and health factors and data concerning abortions which may be used in the improvement of maternal health and life,? and ?shall be to serve as a monitor on all induced terminations of pregnancies -2- performed in the state of Louisiana to assure that they are performed only in accordance with the provisions of law.? 8. Due to the importance of maintaining and publishing this accurate information, Louisiana law provides that abortion providers who fail to complete and timely transmit to DHHS a required abortion report shall be imprisoned for 90 days or ?ned $500 per violation. La. R.S. 40:66. ?Such failure to complete such form and to timely transmit same shall be admissible as evidence that the unreported abortion was illegal.? Id. 9. Plaintiff desires to obtain, and has repeatedly requested from DHHS in multiple requests since October 19, 2011, speci?c, required information that is collected and maintained by DHHS for abortions performed in Louisiana. This includes, but is not limited to, the following basic statistics: 1) the total number of abortions performed on minors in Louisiana over the past seven years; 2) the age of each minor on Whom an abortion was performed; and 3) the age of the listed biological father of each unborn child who was aborted. 4) Complications from the pregnancy termination and any additional procedures used in lieu of complications from the abortion procedure. 10. Plaintiff has ?led and presented multiple requests since October 19, 2011, (See, Exhibit to either have the above?described data submitted to him, or in the alternative, to visit the of?ces of DHHS to examine the appropriate ?les of DHHS to obtain the above data. 11. Plaintiff has not requested, and does not desire to obtain, any other personal data or con?dential or identi?able information on any abortion performed. 12. Plaintiffs repeated, respectful, written and verbal requests for production and/or inspection of the said public information have either been denied or ignored by the Defendant and DHHS. 13. The requested information is clearly included with the scope of what is required by statutes as part of the ?records, or any other documentary materials? that have been ?used, being used, or prepared, possessed, or retained for the use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or perfomied by or under the authority of the constitution or laws of this state,? and fall within the category of ?public records.? La. R.S. l4. Pursuant to La. RS. 44:31 and 44:32, Plaintiff has an absolute right to examine, inspect, copy or reproduce the above-described public records, and providing such access is a responsibility and duty of Defendant and her DHHS employees. 15. La. R.S. affirms ?[t]he burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian,? and provides any record contains material which is not a public record, the custodian may separate the nonpublic record and make the public record available for examination.? 16. To date, after nearly three years following Plaintiffs initial requests for the said public information, Defendant has failed to meet its burden to show the requested information is not subject to inspection, copying, or reproduction by Plaintiff. Indeed, Defendant cannot meet such a burden because the requested information is plainly subject to public review. 17. if the requested statistics are not compiled by DHHS as it is required by law to do, then Plaintiff must be allowed to examine the original records of DHHS to calculate the numbers -4- himself. If the original records or abortion reports contain information that Defendant contends is not public, such information must be redacted prior to Plaintiff?s examination of the original records. 18. As a result of Defendant?s denial or ignoring of Plaintiff?s repeated requests, Plaintiff has been denied access to public records in possession of DHHS when Defendant was obliged by law to produce them. 19. As the custodian of the public records at issue in this proceeding and as the Secretary of the public body in possession, custody, or control of those public records, Defendant knew or should have known that: the public?s right to inspect and obtain copies of those public records was and is a fundamental right guaranteed by the Louisiana Constitution of 1974; the public?s right to inspect and obtain copies of those public records can only be denied when the Louisiana Constitution of 1974 or the Louisiana Public Records Act (La. RS. 44:1 et seq.) specifically and unequivocally so provides; and any exceptions to, exceptions from, or limitations upon the public?s right to inspect and obtain copies of public records contained in the Louisiana Public Records Act (La. R.S. 44:1 et seq.) are in derogation of the public?s right to be reasonably informed and will be strictly and narrowly construed. See, La. Const. Art. 12, 3; Cilj} of Baron Rouge/Parish of East Baton Rouge v. Capital City Press, L.L.C., No. 07-1088, p. 13-15 (La. App 1 Cir. 10/10/08), 4 So. 3d 807, 816? 817. ?Any doubt must be resolved in favor of the right to access.? Id. at 817. 20. Defendant has acted arbitrarily, capriciously, and unreasonably by denying or ignoring the requests made by the Plaintiff. 21. Plaintiff is entitled to recover all of the attorneys? fees and all costs of litigation that Plaintiff has incurred and will incur in connection with this proceeding from Defendant, pursuant to and in accordance with the provisions of La. R.S. and (E). 22. Plaintiff is further entitled to an award of. actual damages that have resulted from the actions of the Defendant custodian, as Defendant has unreasonably or arbitrarily failed to respond to the reSpectful requests of Plaintiff. La. RS. provides that this civil penalty may be granted in an amount not exceeding $100.00 per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of Defendant?s failure to properly respond to Plaintiff. Defendant shall be held personally liable for the payment of such damages, and shall be liable in solia?o with DHH for the payment of Plaintiff?s attorney fees and other costs of litigation. Id. 23. Plaintiff is entitled to have this proceeding to enforce the provisions of the Louisiana Public Records Law against Defendant tried by preference and in a summary manner, pursuant to and in accordance with the provisions of La. R.S. WHEREFORE, Plaintiff, Richard Mahoney, prays, that an alternative writ of mandamus be issued herein to Defendant, Kathy Kliebert, Secretary of the Department of Health and Human Services of the State of Louisiana, directing Defendant to produce all of the public records requested or to show cause on a date and at a time to be fixed by the Court, no less than two (2) nor more than ten (10) days after service of the alternative writ of mandamus on the Defendant, why the alternative writ of mandamus should not be issued, and why Defendant should not be ordered to pay Plaintiff his reasonable attorneys? fees, all costs of litigation, and an appropriate amount in damages as civil penalty, as all provided by the applicable statutes. Plaintiff further prays for full general and equitable relief and for all orders and decrees which are necessary or proper in the premises. Respectfully submitted this 23rd day of uly, 2014. By: Richard Mahoney I 1831 Old Plantation La Baton Rouge, LA 70806 Phone: (225) 235-3226 PLEASE SERVE: Hon. Kathy Kliebert Secretary, La. Department of Health and Human Services 628 N. 4th Street Baton Rouge, Louisiana 70802 SUIT RICHARD MAHONEY, Plaintiff, 19TH JUDICIAL DISTRICT COURT VERSUS PARISH OF EAST BATON ROUGE KATHY KLIEBERT, SECRETARY OF THE DEPARTMENT OF STATE OF LOUISIANA HEALTH AND HUMAN SERVICES OF THE STATE OF LOUISIANA, PERMANENT ASSIGNMENT: Defendant. JUDGE ORDER CONSIDERING THE ABOVE AND FOREGOING Petition for an Alternative Writ of Mandamus, Attorneys? Fees, Costs and Damages (?Petition?): IT IS HEREBY ORDERED that defendant, Kathy Kliebert, Secretary of the Department of Health and Human Services of the State of Louisiana, cause on the day of August, 2014, at why the alternative writ of mandamus Should not be issued to order production to Plaintiff, Richard Mahoney, of the public records requested in the Petition, and Why Defendant Should not be ordered to pay Plaintiff his reasonable attorneys? fees, all costs of litigation, and an appropriate amount in damages as civil penalty, as all provided by the applicable statutes. THUS DONE AND SIGNED in Baton Rouge, Louisiana, on this the day of August, 2014. Judge, Ninteenth Judicial District Court If; C3 :11