Of?ce of the Orleans Parish District Attorney

Leon A. Cannizzaro, Jr.

DISTRICT ATTORNEY

  

ay 2. 2017

Charles Maldonado

Staff Writer

The Lens

4434 Earhart Blvd., Ste. 
New Orleans, LA 70125

Re: Public Records Request

Dear Mr. Maldonado:

This correspondence comes in response to your email dated April 27, 2017. In your letter, you
request a copy of ?any and all Subpoenas? delivered to witnesses beginning Jan. 1, 2016
through the date of this request (4/27/ The Orleans Parish District Attorney?s Office does
not maintain a copy of Subpoenas? delivered to witnesses in a particular ?le or location.
nor does the District Attomey?s Office maintain a list of cases in which a Subpoena? was
issued. Under the Public Records Law, a records custodian is not required to compile a list in
order to respond to a public records request. Rather, the custodian need only make the record
available in the particular format in which it is maintained.

A case on point is Nungesser v. Brown. 664 So.2d 132 (La. App. Cir. 1995). In that case, the
executive director of Louisiana Insurance Guaranty Association (LIGA) submitted a public
records request to the Louisiana Insurance Commissioner for a list of cash investments on estates
where has claims. The Louisiana First Circuit Court of Appeal held that the request gave
a reasonable description of the information sought and required the Insurance Commissioner to
provide bank reports and cash and cash equivalent reports containing the information requested,
even though no ?list? containing the information existed, since the requested information was
readily available through ?nancial reports described in the written request. The Court explicitly
rejected the argument made by Commissioner Brown that ?a proper request must specifically
describe the desired record and the court may only issue a writ of mandamus for the production
of existing records which were specifically requested and subsequently withheld by the
custodian,? 664 So.2d at 134-35 (emphasis in original), and required Commissioner Brown ?to
locate and reproduce those documents in his possession or control which contained the requested
information.? 664 So.2d at 135. In reaching this conclusion, the First Circuit held as follows:

If a custodian of records could avoid compliance with a public records request
which clearly describes the information sought simply because the request does

619 South White Street New Orleans. Louisiana 70119 0 504-822-2414 

Charles Maldonado
May 2, 2017
Page 2

not give the speci?c name or type of document requested, then the public?s right
of access to public documents would be hollow indeed.

It 4! it i

The custodian cannot be excused from complying with the request merely
because the information is kept in a format different from that which was
requested or because the documents responsive to the request contain additional
public information.

Nungesser, 664 So.2d at 135 and 136.

Thus, in accordance with the First Circuit?s ruling in Nungesser, a custodian of public records
must comply with a request for access even if the information is kept in a format different from
that which is requested. However, the Supreme Court reversed the ruling of the First Circuit,
holding as follows:

Nungesser requested a list which did not exist. Brown was not required to produce
a list which did not exist and properly refused Nungesser?s request. Accordingly,
the judgment of the court of appeal af?rming the trial court?s judgment ordering
Brown to comply with Nungesser?s request and imposing civil penalties is
reversed.

Nungesser v. Brown, 667 So.2d 1036 (La. 1996), rehearing denied, 671 So.2d 929 (La. 1996).
See also Beckett v. Serpas, 112 So.3d 348, 353 (La. App. 4th Cir. 2013); Williams Law Firm v.
Bd. of Sup ?rs of Louisiana State Univ., 878 So.2d 557, 563 (La. App. Cir. 2004). The
Louisiana Fourth Circuit Court of Appeal most recently applied this principle as follows:

Fi?h. the document requested must exist. Courts have ?refused to impose a duty
on public bodies to ?create? documents not already in existence.? Jack M. Weiss
and Mary Ellen Roy, OPEN GOVERNMENT GUIDE: OPEN RECORDS AND
MEETINGS LAWS IN LOUISIANA, 16 (6th ed. 2011) (citing Nungesser v.
Brown, 667 So.2d 1036, 1037 (La. 1996)). In Nungesser, the Supreme Court
reversed the appellate court?s decision requiring the Commissioner of Insurance to
provide data that did not exist in the speci?ed form. The Supreme Court reasoned
that the Commissioner ?was not required to produce a list which did not exist and
properly refused Nungesser's request.? 667 So.2d at 1037. Indeed, the
enforcement provisions of La. R.S. 44:35 presuppose the existence of the records
in the of?ce of the custodian. Revere v. Taylor, 613 So.2d 738 (La. App. 4th Cir.
1993).

Lewis v. Morrell, 2017 WL 1247926 (La. App. 4th Cir. April 5, 2017).

Charles Maldonado
May 2, 2017
Page 3

Under the Public Records Law, a public of?cial is relieved of the obligation to make a public
record available for inspection when doing so would be unreasonably burdensome or expensive.
In this regard, LSA-R.S. 44:33 provides as follows:

Availability of records

A. (1) When a request is made for a public record to which the public is entitled,
the of?cial, clerks of court and the custodian of notarial records in and for the
parish of Orleans excepted, who has responsibility for the record shall have the
record segregated from other records under his custody so that the public can
reasonably view the record.

(2) If, however, segregating the record would be unreasonably burdensome or
expensive, or if the record requested is maintained in a fashion that makes it
readily identi?able and renders further segregation unnecessary, the of?cial shall
so state in writing and shall state the location of the requested record.

It is well established that the examination of public records or requests for reproduction cannot
be so burdensome as to interfere with the operation of the custodian?s constitutional and legal
duties. Beckett v. Serpas, 112 So.3d 348, 353 (La. App. 4th Cir. 2013); Vandenweghe v. Parish
of Je?erson, 70 So.3d 51, 58 (La. App. 5th Cir. 2011), writ denied, 71 So.3d 289 (La. 2011);
Elliott v. Dist. Attorney of Baton Rouge, 664 So.2d 122 (La. App. Cir. 1995), writ denied, 664
So.2d 440 (La. 1995).

In the present case, the request for Subpoenas? delivered to witnesses is overly broad,
particularly in light of the fact that the request involves a review of literally thousands of closed
?les, a substantial number of which are stored off-site. Therefore, compliance with your request
would require that this Of?ce manually review thousands of ?les stored on premises and off-site,
the retrieval fee for which is $8.10 per ?le. Given the potential volume of the records that would
have to be reviewed in order to respond to your request, the fact that the records cannot are not
readily identi?able and locatable, and the retrieval costs involved, the District Attorney?s Of?ce
submits that obtaining the records requested by you and preparing them for public review,
including redacting and removing privileged information and documentation therefrom and
determining whether there is a potential for further criminal litigation, would be unreasonably
burdensome. Accordingly, your request is denied at this time.

Charles Maldonado
May 2, 2017
Page 4

Respectfully submitted,

Donna R. Andrieu
Assistant District Attorney