CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA NO. 15-4547 DIVISION SECTION: 6 THE LENS, CHARLES MALDONADO AND ABRAM HANDLER VERSUS MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS, AND THE CITY OF NEW ORLEANS FILED: DEPUTY CLERK MEMORANDUM IN OPPOSITION TO PETITION FOR WRIT OF MANDAMUS. AND DECLARATORY RELIEF MAY IT PLEASE THE COURT: Defendants, Mitchell J. Landrieu, in his of?cial capacity as Mayor of the City of New Orleans, and the City of New Orleans (collectively, the ?City?), appearing through undersigned counsel, respectfully submit this memorandum of law in opposition to the Petition for Writ of Mandamus, Injunctive and Declaratory Relief (the ?Petition?) filed by petitioners, the The Lens, Charles Maldonado, and Abram Handler (the ?Petitioners?). Petitioners are not entitled to the extraordinary relief requested and the Petition should be denied because: 0 The City complied with the Public Records Act and provided a response to Petitioners regarding their February 13, 2015 public records request. The City provided responses both in writing and in face-to-face and telephonic meetings with Petitioners in which the City explained why the request is unreaSOnably burdensome under the Public Records Act. Producing the records would require the City either to manually review and redact millions of records at the expense of potentially hundreds of employee hours, or to disclose private information (including social security numbers) of potentially thousands of citizens; The City complied with the Public Records Act by providing all responsive documents relating to Petitioners? remaining public records requests, thus mooting any claims for mandamus; Petitioners have not even attempted to state a claim for injunctive relief; 0 The City?s response to each of Petitioners? public records requests was satisfactory and complied with the mandates of the Louisiana Public Records Act. The City?s response was not ?arbitrary and capricious? and there is no legal support for the assertion that the City should be charged with the costs of these proceedings. Each year, the City of New Orleans receives roughly one thousand requests under the Louisiana Public Records Act], or about four requests for each business day. The City?s average response time to a public records request is twelve days. Considering the nature of public records in the 21St Century, this is perfectly reasonable, even admirable. Some requests are relatively narrow and require perhaps an hour of employee time and are completed in a short time frame. Others are, however, far more burdensome. They require gathering documents from numerous sources within the City and reviewing those documents for the many exemptions and exclusions under the Public Records Act. The exemptions and exclusions do not simply shield information from disclosure, they explicitly prohibit the disclosure of, for example, social security numbers and medical information of citizens. Because of this, it is imperative that any review of public records for such information be performed by an individual familiar with the many exceptions to the Public Records Act. The courts of this state have consistently acknowledged failsafe provisions that protect governmental entities from the impossible choice of complying with an unrealistically short response period or risking the disclosure of citizens? private information. This case involves precisely those protections. The City complied with Petitioners? February 13, 2015 public records request by providing a detailed response and engaging in follow-up meetings to explain exactly why the request is unreasonably burdensome under the Public Records Act. Such a response is all that the Act requires. The Act does not require the City to create documents in order to comply with a request. The City provided timely responses to each of the remaining requests, indicating what needed to be done and that it would take time to compile, review, and prepare the documents for production. The City, while continuously communicating with plaintiffs, has now provided all documents responsive to each of those requests. The City has not acted arbitrarily or capriciously in this matter. To the contrary, the City has devoted and continues to devote enormous resources to responding to public records requests. As such, an award of damages, fees, or costs is not warranted in this action. I This ?gure excludes requests directed speci?cally toward the New Orleans Police Department or other departments that handle certain targeted requests. FACTUAL BACKGROUND I. The City has provided a response the public records requests referenced in this lawsuit. On February 13, 2015, Abe Handler submitted a public records request to the Law Department for the City of New Orleans, seeking the following information: A copy of the latest backup of the BuySpeed database 0 A copy of the current BuySpeed database 0 Please note the following link which explains how to easily make a copy of a SQL Serve 2008 R2 database: [web address omitted] A record of all numbers submitted to the law department since 2011 indicating if the number was approved and signed by the law department or was denied by the law department. See Af?davit of Anita B. Curran (hereinafter ?Curran Affidavit?), attached as Exhibit 1, at 113; see also Exhibits A (hereinafter the ?February 13, 2015 Request?) to the Petition. On February 19, 2015, via Electronic Mail, Assistant City Attorney, Anita Curran, provided a detailed response notifying Petitioners that the requests for a full copy and most recent backup copy of the BuySpeed database would not be ful?lled because La. Rev. Stat. provides that ?any documentary material of a security feature of a public body?s electronic data processing system . . . including hardware or software security, password, or security procedure, process, configuration, software, and code is not a ?public record.? See Curran Af?davit at 1111 3-6, see also Exhibit to the Petition. On February 19, 2015, Mr. Handler responded to Ms. Curran?s letter by indicating his belief that the cited exception did not apply. See Curran Af?davit at 11 6; see also Exhibit to the Petition. In his conclusion, Mr. Handler noted the following: To be clear, I?m seeking an electronic copy of all the information that has been entered into BuySpeed its database not the program itself or any security documentation related to the system. Id. It should be noted that BuySpeed is a sprawling database that tracks purchasing for the entire City?thousands of vendors and millions of bits of information some of it sensitive and exempt from disclosure under public records laws. And Mr. Handler?s request is not for some easily digestible subset of that information that can be isolated, reviewed, and redacted; rather, the request is for the entire database. Id. Over the next month, although she is not required to create documents, Ms. Curran worked diligently to attempt to put together records that provided information responsive to the request. See Curran Af?davit at 1111 7-12. Ms. Curran was in regular contact with individuals from the Information Technology and Finance departments. Further, Ms. Curran attended a face-to?face meeting between high-ranking City of?cials and Petitioners to further discuss the capabilities of the City?s computer systems. Id. The process of even determining whether responsive information could be pulled from multiple data sets and systems took weeks. On April 30, 2015, Ms. Curran responded again to Mr. Handler. See Curran Af?davit at 11 13; see also Exhibit to the Petition. Ms. Curran explained that the Department of Information Technology and Innovation had attempted to redact or remove con?dential information (such as social security numbers of local vendors and citizens) from a sampling of the database. That effort failed. As a result, the City concluded that the request to provide the database was unreasonably burdensome and expensive under La. Rev. Stat. Id. Petitioners also sent separate public records requests on February 19, 2015 (Exhibit to the Petition); March 10, 2015 (Exhibit to the Petition); March 10, 2015 (Exhibit to the Petition); March 27, 2015 (Exhibit to the Petition); March 10, 2015 (Exhibit to the Petition); February 6, 2015 (Exhibit to the Petition); December 1, 2014 (Exhibit to the Petition); August 12, 2014 (Exhibit to the Petition); August 5, 2014 (Exhibit 0 to the Petition); and February 25, 2015 (Exhibit to the Petition) (collectively, hereinafter the ?Completed Requests?). The City provided a response to each of those request within three days of its receipt, and the City has now provided documents responsive to each request. In spite of the City?s tremendous efforts to satisfy Petitioners? requests, on May 15, 2015, the City was served with the above-referenced lawsuit seeking a writ of mandamus and injunctive and declaratory relief. II. The City responds to public records requests. The Petitioners have alleged that the City routinely violates the Public Records Act. Such a contention is wholly contradicted by the City?s response to Petitioners? requests as well as all other public records requests. It should also be noted that Petitioners are not blameless in this saga. On June 17, 2014, the Law Department received from The Lens a public records request seeking information regarding a long list of contracts. See Supplemental Af?davit of Anita B. Curran (hereinafter ?Supplemental Curran Af?davit?), attached as Exhibit 2, at 11 3. The City timely responded that it would begin the laborious process of compiling the requested information. Over the span of two months, the Law Department compiled, indexed, reviewed, and prepared the documents for production. Id at 1111 4-6. That process took over 60 hours of employee time. Id. at 11 7. On August 21, 2014, the Law Department noti?ed The Lens that the requested records were available for inspection or copying. Id. at 11 8. On September 15, 2014, The Lens responded with a long list of additional records to provide. Id. at 11 9. Many of those requests were duplicative of the earlier request, but the Law Department compiled documents responsive to the new requests as well. Id. at 11 10. On September 29, 2014, the City noti?ed The Lens that the documents responsive to his original and supplemental requests were available for review. Id. at 11 11. To date, no one has ever inspected or copied the records. Id at 1111 12-13. These requests took considerable attomey time?time that might have been spent responding to other public records requests. Thus, Petitioners? feigned indignation at reasonable delays in the receipt of public records must be viewed in light of their own willingness to abuse the public records law and waste public time and money. The City routinely responds to requests for single documents or sets of documents that must be manually redacted, such as police reports. Petitioners? request is the equivalent of requesting every police report for several years. Such a request?requiring hundreds of employee hours to review and redact?would be unreasonable on its face. Moreover, there is no danger that the City is abusing the ?burdensome? label to shield public records from disclosure. Indeed, out of more than one thousand requests received by the Law Department in 2014, less than three percent were denied as unreasonably burdensome. If anything, the City consistently errs on the side of disclosure. The City?s response is, therefore, complete within the requirements of the Louisiana Public Records Act. The law does not require defendants to perform searches for records that would be unreasonably burdensome under La. Rev. Stat. LAW AND ARGUMENT I. Petitioners? request for mandamus is moot because the required responses have been provided. Title of the Louisiana Code of Civil Procedure classi?es the writ of mandamus, as an ?Extraordinary Remedy.? ?Mandamus lies only when a public of?cial refuses to perform a duty that the law clearly states he must perform. It never issues in doubtful cases.?2 Appellate courts have sharply limited the availability of the writ of mandamus, holding that this remedy ?will not 2 Regional TransitAuthority v. Kahn, 99-2015 (La. App. 4 Cir. 8/26/99), 742 So.2d 960, 964. (citing Bye v. Bd. 0f Trustees of Police Pension Fund, 274 So.2d 855, 856 (La. App. 4 Cir. 1973); State ex. Rel. Neighborhood Action Committee v. Edwards, 94-0630 (La. App. 1 Cir. 3/3/95), 652 So.2d 698, 700. lie in matters in which discretion and evaluation of evidence must be exercised. The remedy of mandamus is not available to command performance of an act that contains any element of discretion, however slight.?3 In this instance, mandamus is inappropriate. As an initial matter, each of the Completed Requests has been fully satis?ed?all responsive documents have been provided. Accordingly, there is nothing for the Court to order or for any public of?cial to do. The request for mandamus as to the Completed Requests is moot.4 II. The February 13, 2015 Request is impossible to satisfy. The request for mandamus as to the February 13, 2015 Request is similarly moot. It is undisputed that the City provided a response to that request. It is further undisputed that Mr. Handler provided further clari?cation of what he was seeking. Finally, it is undisputed that the City provided a response explaining exactly why the request was unreasonably burdensome and expensive. Responding to the request would require the City to manually review and redact millions of data ?elds, at the cost of potentially hundreds of employee hours. This would also occupy all of the time of each City employee who is familiar with the Louisiana Public Records Act for months, thus delaying all future public records responses. The Petitioners? February 15, Request amounts to a request to provide unfettered access to thousands of pieces of con?dential, personal, or private data on citizens and City contractors. This runs strongly counter to the right to privacy provided in Article I, Section 5 of the Louisiana Constitution. Perhaps more relevant to this proceeding, it is also illegal. It is impossible to redact or remove information that the City is prohibited to disclose. Granting mandamus, that requires the City to provide access to the BuySpeed database, amounts to an order that the City violate the law. 11. Petitioners Are Not Entitled to Declaratory or Injunctive Relief. Petitioners also request declaratory and injunctive relief. Although the nature of the relief sought is not entirely clear, Petitioners appear to seek a declaration that the City is presently violating the Louisiana Public Records Act by failing to respond to certain requests; and (2) the City has violated the Louisiana Public Records Act by failing to respond to the Completed Requests Within three days. Petitioners also seek ?that the City be enjoined from continuing to violate the law as such.? 3 Charter Sch. Of Pine Grove, Inc. v. St. Helena Parish Sch. Bd., 2007?2238 (La. App. 1 Cir. 2/ 19/09), 9 So.3d 209, 22] (emphasis added). 4 Landry v. Torres, 12?0165 (La. App. 4 Cir. 9/26/12), 101 So.3d 98, 101. Petitioners are not entitled to the relief sought. As the City has already established, no violation of the Public Records Act has occurred as to the February 13, 2015 Request. As to the Completed Requests, the law does not require that records be turned over within three days? only that governmental entities provide a response Within three days. Thus, the City?s alleged failure to provide responsive records within three days of every public records request cannot be the basis for declaratory relief. Finally, Petitioners have not even attempted to demonstrate their entitlement to injunctive relief, which must be denied on the same basis as their requests for mandamus and declaratory relief. A. The City provided an appropriate response to February 13, 2015 Request. As discussed, supra, the City?s response to the February 13, 2015 Request was, and remains, legally appropriate. It is well established that the examination of records or requests for reproduction cannot be so burdensome as to interfere with the operation of the custodian?s constitutional and legal duties.5 The jurisprudence further recognizes that any restriction or limitation imposed by the custodian places the burden on the custodian to justify the restriction or limitation.6 Here, given the particular facts and circumstances of this case, i. the extremely broad nature of the records requested, and the fact that con?dential information cannot reasonably be segregated from otherwise public information, the City has demonstrated that manually redacting the records would be more than unreasonably burdensome, but virtually impossible. B. The defendants provided appropriate and timely responses to the plaintiffs? remaining requests. The only remaining matter at issue regarding the Completed Requests is Petitioners? contention that the failure to provide documents responsive to the requests within three days amounts to a violation of the Public Records Act. The Louisiana Fourth Circuit Court of Appeal has roundly rejected the assertion that the Louisiana Public Records Act requires government entities to turn over documents within three days.7 Moreover, the many exemptions and exclusions require governments to engage in onerous review and redaction of public records.8 Such requirements are understood to require delays far beyond the customary three days in order 5 Vandenweghe v. Parish of Jefferson, 11?52, p. 12 (La.App. 5 Cir. 5/24/11), 70 So.3d 51, 58, writ denied, 201 l? 1333 (La.9/30/l 71 So.3d 289; Elliott v. DistrictAttorney of Baton Rouge, 94?1804 (La.App. 1 Cir. 9/14/95), 664 So.2d 122, 126. 6 Id. 7 See, e. g, Landry, 101 So.3d at 101 (?nding that a delay of 48 days to provide documents did not violate the Act). 8 See La. Att?y Gen. 0p. No. 96-303 (July 3, 1996). to ensure that private or con?dential information is protected from disclosure.9 Further, the City went far beyond what is required by law. The City engaged Petitioners in discussions to ascertain what information they sought and the City attempted to pull information from multiple sources to attempt to provide responsive information. The records simply cannot be provided. The City provided timely and complete responses to the Completed Requests. This is all that the Louisiana Public Records Act requires. There is no basis for a declaration that the City acted unlawfully. C. The responses are not arbitrary and capricious. The City responds to every public records request it receives, including every one at issue in this lawsuit. The City provided documents responsive to each of the Completed Requests. The City provided a legally suf?cient (and legally mandated) response to the February 13, 2015 Request. Petitioners received everything the law entitles them to and Within time limits set by the Louisiana Public Records Act. Indeed, the Louisiana Public Records Act is clear that a custodian need only provide ?an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request.? If such an estimate is provided under La. R.S. a plaintiff has no claim under the law. In this case, the City responded with an indication of a reasonable time estimate in light of the nature of the request, and the City followed up with the actual records. It is dif?cult to see how the Public Records Act should function any differently. Moreover, there is no basis to conclude that the City arbitrarily or capriciously withheld the requested records or failed to respond under La. R.S. Rather, all records were provided except those speci?cally exempted from disclosure under the Public Records Act because the request was unreasonably burdensome. And ?[T]he penalty provisions of La. R.S. 44:35 are not applicable in cases where there is no question raised by the custodian that the records requested are public records.?10 In none of the requests at issue did a records custodian or any other City personnel raise a question as to whether the records requested were actually ?public records? as de?ned by the Public Records Law. Accordingly, the penalty provisions of La. Rev. Stat. 44:35 are inapplicable. 9 Id. ?0 Landry, 101 So.3d 98, 104 (citing Washington v. Reed, 95-1067 (La. App. 1 Cir. 2/23/96), 668 So.2d 1313, 1314). For the foregoing reasons, the City respect?Illy requests that the Court reject Petitioners? requests for a writ of mandamus and declaratory and injunctive relief. The City complied with the mandates Of the Louisiana Public Records Act. The Public Records Act does not require public of?cials create documents or undertake an impossible task to provide information. This matter should be dismissed at each party?s sole cost. Respectftu submitted Rf SIMMS LSB #28227 (T.A.) SR. CHIEF DEPUTY CITY ATTORNEY WILLIAM R. H. GOFORTH, LSB #33153 ASSISTANT CITY ATTORNEY E. PATRICK EAGAN, LSB #34848 ASSISTANT CITY ATTORNEY ISAKA R. WILLIAMS, 29704 ASSISTANT CITY ATTORNEY SHARONDA R. WILLIAMS, LSB 28809 CITY ATTORNEY 1300 Perdido Street City Hall Room 5E03 New Orleans, Louisiana 70112 Telephone: (504) 658-9800 Facsimile: (504) 658-9868 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy Of the above and foregoing pleading has been served upon all counsel of record, either by hand delivery, by facsimile, by electronic transmission, or by depositing same in the United States mail, postage prepaid and prOperly addressed, this Z33, I R.