FILED ON BEHALF OF THE ORLEANS PARISH DISTRICT 
OFFICE PAYS NO COURT COSTS LA. R.S. 13:4521

 

 

CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
STATE OF LOUISIANA
NO. 2017-4661 DIVISION 
MARJORIE ESMAN
VERSUS

LEON A. CANNIZZARO, JR.,
IN HIS OFFICIAL CAPACITY AS ORLEANS PARISH DISTRICT ATTORNEY

FILED:

 

 

DEPUTY CLERK

 

DEFENDANT, LEON A. CAN NIZZARO, JR., in his OFFICIAL
CAPACITYAS ORLEANS PARISH DISTRICT ATTORNEY
OPPOSITION TO THE WRIT OF MANDAMUS

 

NOW INTO COURT, through undersigned counsel, comes Defendant, Leon A.
Cannizzaro, Jr., in his Of?cial Capacity as Orleans Parish District Attorney, who ?les this
Opposition to the Petitioner?s Writ of Mandamus.

I) BACKGROUND AND PROCEDURAL HISTORY

On May 5, 2017, Petitioner Marjorie Esman submitted a Records Request to the Orleans
Parish District Attorney?s Of?ce requesting:

Records suf?cient to show the names and Louisiana Bar Association numbers of

any and all lawyers currently employed by your of?ce who have ever authorized or

sent documents titled, styled, or identi?ed as subpoenas that were not authorized

by a judge, meaning they were not issued by the clerk of Court and/or signed by a

judge1

On May 8, 2017, Donna R. Andrieu issued a response to Marjorie Esman?s Records
Request at the behest of the custodian of records for the Orleans Parish District Attomey?s Of?ce

Leon A. Cannizzaro, Jr.2 The Defendant cited to numerous jurisprudential and statutory authority

regarding the rational for the conditional denial of said request. Amongst the reasons for the

 

1 Exhibit A, Marjorie Esman?s Public Records Request dated May 5, 2017.
2 Exhibit B, Defendant?s response to the Public Records Request dated May 8, 2017.
1 Marjorie Esman v. Leon A. Cannizzaro, Jr., Defendant?s Opposition to Writ of
Mandamus

 

conditional denial was that the Petitioner?s Records Request was unreasonably burdensome and/
or expensive and that the requested documents did not exist.

On May 15, 2017, the Petitioner ?led a Writ of Mandamus which requested that this
Honorable Court direct and compel the Defendant to immediately produce the records requested.
II) LAW AND ANALYSIS

The Louisiana Constitution of 1974 Article XII, 3 states that ?no person shall be denied
the right to observe the deliberations of public bodies and examine public documents, except in
cases established by law.? In accordance therewith, the Louisiana Legislature established the right
to examine public records in Act 195 of the Regular Session of 1940. The Louisiana Public
Records Law is currently codi?ed in La. Rev. Stat. 44:1, et seq.

Louisiana jun'Sprudence has also provided that citizens have the right to examine public
records and that the public records laws should be construed liberally. i?e Research Corp. v.
Rausch, 450 So.2d 933, 936 (La. 1984). However, this right to inspect, copy and obtain public
records is not absolute or guaranteed. The Louisiana Legislature has passed numerous exceptions
and limitations to public records law which will be addressed below.

Regarding the mandamus process invoked by Petitioner, La. Code of Civ. Proc. Art. 3862
states that a ?writ of mandamus may be issued in all cases where the law provides no relief by
ordinary means or where the delay involved in obtaining ordinary relief may cause injustice.? A
mandamus is an extraordinary remedy which should be applied only where ordinary means fail to
afford adequate relief. Bd. of Trustees of Sher??s Pension Relief Fund v. City of New Orleans,
819 So.2d 290, 292 (La. 05/24/02).

A) Unreasonablv Burdensome 0r Expensive

La. Rev. Stat. provides that: [i]f 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.? La. Rev. Stat 44:33 states: however, segregating the record would be
unreasonably burdensome or expensive . . . the of?ce shall state in writing.? A?ordable Energy v.

Frick, 695 So.2d 1126, 1136 (La. App. 4 Cir. 05/28/97).

 

2 Marjorie Esman v. Leon A. Cannizzaro, J71, Defendant?s Opposition to Writ of
Mandamus

 

As noted above, Louisiana Courts have recognized a variety of exemptions and limitations
to the Louisiana Public Records Law. One of those exemptions is that the ?request for
reproduction cannot be so burdensome as to interfere with the operation of the custodian?s
constitutional and legal duties.? Elliot v. District Attorney ofBaton Rouge, 664 So.2d 122, 126
(La. App. 1 Cir. 09/14/95). see also Beckett v. Serpas, 112 So. 3d 348, 353 (La. App. 4 Cir.
03/20/13). The court in Frick de?ned the term ?interfere? as ?when the request is of such a
magnitude that it disrupts normal of?ce procedure to the point where the of?ce ceases to operate.?
Alliancefor A?ordable Energy 12. Frick, 695 So. 2d 1126, 1136 (La. App. 4 Cir. 05/28/97).

In the Defendant?s response to the Records Request dated May 5, 2017, he stated that the
request is unreasonably burdensome and expensive. A vital fact for this Honorable Court to be
mindful of, the records request itself does not request any particular ?le; it requests any document
which is suf?cient to show the ?names and Louisiana Bar Association number of a_ny and all
lawyers currently employed by your office . . who have issued a subpoena that was not
authorized by the Clerk of Court and] or signed by a judge.

There is no time period or time frame as to this request. The only chronological limitation
is that the attorney still be currently employed by the Orleans Parish District Attorney?s Of?ce.
The Defendant has attorneys who have been employed at that of?ce for over twenty (20) years.

In order to comply with the Records Request, the Defendant would have to ?rst determine
which of these thousands of ?les are eligible to be viewed by the public, as La. Rev. Stat.
provides that ?[r]ecords pertaining to pending criminal litigation or any criminal
litigation which can be reasonably anticipated, until such litigation has been ?nally adjudicated or
otherwise settled . . 3?34 The Defendantwould thereafter have to manually review thousands of
closed ?les.5 The Defendant has included as Exhibit and Af?davits by David Pipes, Chief of
Trials for the District Attorney?s Of?ce for Orleans Parish and John Rohr Closed Records
Supervisor for the District Attorney?s Of?ce for Orleans Parish detailing the above referenced

process.6

 

3 This argument will be more fully addressed later in this Opposition.
4 See, Exhibit c: Af?davit of David Pipes 118.
5
Id.
6 See, Exhibit C: Af?davit of David Pipes and Exhibit D: Af?davit of John Rohr.
3 Marjorie Esmarz v. Leon A. Cannizzaro, Jr., Defendant?s Opposition to Writ of
Mandamus

 

 

However, if the ?le is closed, the ?le is likely located at an off-site facility.7 Each ?le has
a cost associated with its retrieve from the off-site facility. In terms of the possible number of ?les
that the Petitioner is requesting, this endeavor could easily run into the thousands of dollars just to
retrieve the ?les.

After retrieval, the Defendant would have to manually review each ?le, page by page, in
order to determine if the particular document is located in said ?le.8 This process would be quite
impossible for the District Attorney to undertake. The Orleans Parish District Attorney?s Of?ce
had its budget dramatically decreased by $600,000.00 in 2016.9 In order to preperly review each
?le to locate the unknown number of the requested documents and to ensure that con?dential
material, work-product, and other documents and/ or materials which are excepted via the various
exceptions and limitations provided for by Louisiana Law, assistant district attorneys would have
to conduct a thorough review for each of these ?les for said documents.10 These reviews
would have to be undertaken by assistant district attorneys in order to ensure that the proper
documents are found and any excisions or withholding are both made and within the law.11

The court tackled an extremely similar situation in Beckett, supra. In that matter, the
Plaintiff made a Public Records Request for ?all documents generated for the past ten years as a
result of investigations by the Public Integrity Bureau (PIB) into allegations that city police of?cers
violated the department manual? and other similar requests. Beckett, 112 So. 3d at 350. The court
found that this request was overly broad, as the ?les were maintained by of?cer name and/or ?le
number rather by alleged offense, which would necessitate a review of all ?les in order to locate
the documents requested. Id. The court stated ?[h]ere, given the particular facts and circumstances
of this case, i.e. the volume of the records requested and the manner in which the ?les are
categorized, the City had demonstrated that I segregating ten years of P113 ?les would. be

unreasonably burdensome.? Beckett, 112 So. 3d at 353.

 

7 See, Exhibit D: Af?davit Of John Rohr i6

3 See, Exhibit c: Af?davit of David Pipes 111114?15.

9 Exhibit E, 2017 Annual Operating Budget, City of New Orleans, Louisiana pg. 518 - 519.
1? See, Exhibit c: Af?davit ofDavid Pipes its.

11 Id. at 1116.

4 Marjorie Esman v. Leon A. Cannizzaro, J11, Defendant?s Opposition to Writ of
Mandamus

 

The litigation before this Honorable Court is identical to that in Beckett, if not more
burdensome. As illustrated above, the Petitioner?s Records Request would require review of tens
of thousands of ?les. As in Beckett, the ?les requiring search by Petitioner?s request are labelled
by name and/or number and not by the type of record requested by Petitioner. The Orleans Parish
District Attorney?s Of?ce does not have an indexing of the contents in each ?le or the contents of
all ?les as a whole.12 Therefore, as stated above, the only way to comply with the Petitioner?s
Records Request is to manually review approximately 27,000 or more ?les in order to determine
if the requested document is contained in each ?le. This process could hardly be more burdensome
or impossible to complete.

Louisiana Constitution of 1974 Art. V. states that ?a district attorney, or his
designated assistant, shall have charge of every criminal prosecution by the state in his district . .
As elaborated in Beckett, Elliot and Flick, when the request is so burdensome that it interferes
with the constitutional duty of the of?ce that it ceases to operate, then the exception listed in La.
Rev. State applies.

It is undisputed that the constitutional purpose of the District Attorney and his assistants as
put forth in the Louisiana Constitution 1974 is to have charge of every criminal prosecution. The
District Attorney is a constitutional of?cer charged with upholding the State?s interest in
prosecuting criminal cases and exercises a portion of the sovereign power of the State within his
judicial district; any possible curtailment of his authority by statute or other constitutional mandate
can only be viewed with due deference to the District Attorney? 3 constitutional prerogative. Board
of Commissioners of Orleans Levee District v. Connick, 654 So.2d 1073, 1077 (La. 3/9/1995).
Simply put, this Records Request would make it impossible for the Defendant to adhere to the
constitutional mandate of prosecuting criminal cases because the Defendant would have to divert
his assistant district attorneys and a massive amount of resource to conduct ?le review.13

B) The Public Records Request Information not contained in the Record

In the event that the Petitioner is arguing that they are only requesting information and not .

docmnentation regarding the Louisiana Bar Association Bar Roll Number for any attorney

 

?See, Exhibit c: Af?davit ofDavid Pipes i9-
13 Id. at 111113-20.

5 Marjorie Esman v. Leon A. Cannizzaro, Jr., Defendant?s Opposition to Writ of
Mandamus

 

currently employed by the District Attorney? Of?ce who have every authorized or sent documents
identi?ed as subpoenas that were not issued by the Clerk of Court or signed by a Judge, this
document does not exist.

Louisiana jurisprudence has been clear that the Public Records Law does not compel the
disclosure of a non-existent documents. The matter of Nungesser is exactly on point. The Plaintiff
issued a Public Records Request for a list of cash investments on estates where the Louisiana
Insurance Guaranty Association (LIGA) has claims. Nangesser 12. Brown, 664 So.2d 132, 133 (La.
App. 1 Cir. 10/06/95) reh ?d 11/15/95 writ granted 02/16/96. The written reSponse stated that ?the
data you request does not exist in the form that you seek.? Id. at 133. The court initially held that
the Plaintiff was entitled to the records. However, he Louisiana Supreme Court later overruled the
Court of appeals and ruled ?Nunge sser 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.? Nangesser v.
Brown, 667 so.2d 1036 (La. 02/16/96) reh ?d 04/19/96.

This matter is exactly identical as the Defendant stated that ?the custodian is not required
to compile a list in order to respond to a public records request.?14 The Petitioner is requesting
information that does not exist. The Defendant has legally and properly denied the request
indicating the very same reason that was cited by the Defendant in the Nungesser litigation.

C) Records Pertaining to Pending or Active Litigation

The Louisiana Legislature created a variety of exemptions Within the Louisiana Public
Records Law. One of those exemptions is contained in La. Rev. Stat. which states in
summary that nothing in the Louisiana Public Records Law shall be construed to require the
disclosure of records pertaining to pending criminal litigation (emphasis added) or any criminal
litigation which can be reasonably anticipated.15 Jurisprudential law has interpreted this language
as meaning that ?persons shall have access to DA records pertaining to criminal litigation a?er
(emphasis added) the criminal litigation is ?fully adjudicated? or otherwise settled. Harrison v.

Norris, 569 So.2d 585, 587-88 (La. App. 2 Cir. 10/31/90).

 

14 Exhibit B, Defendant?s response to the Public Records Request dated May 8, 2017.
15 La. Rev. Stat. 44:3.

6 Marjorie Esman 12. Leon A. Cannizzaro, Jr., Defendant?s Opposition to Writ of
Mandamus

 

The Records Request in question requested documents pertaining to cases from January 1,
2016 to April 27, 2017. Some of the requested cases have not reached completion and therefore
would fall under this exception. The court in Harrison stated, ?the law also contemplates that a
judgment or adjudication against a defendant in a criminal proceeding becomes ?nal when the
defendant does not appeal or seek appellate rehearing in an appeal.? Harrison at 588.

D) The District Attorney did not act Arbitrary and Capricious

The Petitioner in Paragraph 11 avers that the Defendant acted arbitrarily and capriciously
in withholding the documents sought and in his response. The second sentence in La. Rev. State
states: ?[s]uch written noti?cation shall contain a reference to the basis under law which
the custodian has determined exempts a record, or any part thereof, from. inSpection, copying, or
reproduction.?

The Petitioner argues that the denial letter does not address the issue of the Public Records
Request and is therefore arbitrary and capricious. However, a clear reading of the reSponse letter
indicates differently. The response letter starts by reciting the Petitioner?s Record Request. The
response then states ?[u]nder Public Records Law, a records custodian is not required to compile
a list in order to respond to a public records request.?16 The test for determining whether an action
is arbitrary or capricious is whether the action taken was ?without reason.? Calcasiea League for
Environmental Action Now v. Thompson, 661 So.2d 143, 150 (La. App. 1 Cir. 07/14/95).

The May 8, 2017 response by the Defendant was three (3) pages and cited to both
jurisprudential and statutory law. The studied and researched response letter clearly indicated the
legal basis and reasoning in denying the Public Records Request submitted by the Petitioner. As
stated in Calcasiea League for Environmental Action Now, the test for determining if an act was
arbitrary or capricious is if the action was taken without reason. The response cannot have been
made without reason when it contains a and reasoned response??much longer than the

initial requestw?citing numerous cases and statutory law as the basis for the denial.

 

16 Exhibit B, District Attorney?s response to Petitioner?s Records Request dated May 8, 2017.

7 Marjorie Esman v. Leon A. Cannizzaro, Jr., Defendant?s Opposition to Writ of
Mandamus

 

E) Opposition to an Award of Attorney Fees

The Petitioner requests that this Honorable Court award him attorney fees and other costs
associated with this litigation. The Petitioner cited La. Rev. Stat. as his legal bases for
this request.

It is important to note that La. Rev. Stat. 44:3 is divided into two parts. The ?rst part
states in summary that if the Petitioner is successful in their suit, then attorney fees shall be
awarded. However, the second part of the section states in summary that if the Petitioner is only
partially successful, then the court has discretion in awarding attorney fees.

In Carmona, the Fourth Circuit Court of Appeals ruled that the trial court was proper in
?denying award of attorney fees where plaintiff was only partially successful.? Carmona v.
Wallace, 645 So.2d 1300, 1301 (La. App. 4 Cir. 11/17/94)

Accordingly, in order for the Petitioner to be awarded attorney fees without the discretion,
this Honorable Court must ?nd that the Petitioner is entitled to all request documents and records.

If attorney fees are within the discretion of this Honorable Court, then this Honorable Court
can take into consideration the good faith efforts of the Defendant in determining whether to award
attorney fees and costs to the Petitioner. Gannett River States Publishing 12. Hussey, 557 So.2d
1154, 1160 (La. App. 2 Cir. 02/28/90) writ denied 05/11/90. see also Capital City Press, LL. C.
v. Louisiana State University System Board ofSapervisors, 168 So. 3d 727, 744 (La. App. 1 Cir.
12/30/14) (the court ruled that the Defendants were not unreasonable or arbitrary in asserting their
good faith belief defending their position regarding redacting information in relation to the
Plaintiffs Public Record Request).

In Gannett, the Petitioner requested disclosure of documents relating to the selection of a
new municipal ?re chief. Gannett, 527 So.2d at 1155. The Defendant denied this request citing
that the interest of the public would not be served in disclosing this information and that the request
was an unreasonable invasion of privacy under the Louisiana Constitution. Gannett, 527 So.2d at
1155 . Importantly, as in this matter, the Defendant outlined their reasoning for denying the Public
Records Requested and cited applicable law. Gannett, 527 So.2d at 1155. The Court stated, 

agree with the district court that defendants? resistance to plaintiff 5 request was in good faith.

 

8 Marjorie Esman 12. Leon A. Cannizzaro, Jr, Defendant?s Opposition to Writ of
Mandamus

 

Defendants had a legitimate concern for the privacy interests of the job applicants and could point
to Trahan v. Larivee, supra, as support for their position. Gannetr, 527 So.2d at 1160. In this
matter, the Defendant cited to cases as well as to statutory law in Title 44 of the Louisiana
Revised Statute.

In the Defendant?s response letter dated May 3, 2017, the Defendant indicated the reason
for the denial was the unreasonable and overly burdensome nature of this request. 17 In this matter,
as illustrated above there are serious logistically and expense issues in attempting to ful?ll the
Public Records Request made by the Petitioner.

As an illustration of the Defendant?s good faith in attempting to ?nd an amicable solution
to his matter, counsel for the parties met on May 25, 2017 discuss ways for the Petitioner? request
to be narrowed in order for the Defendant to retrieve the requested documents.

Accordingly, the Defendant respect?illy requests that if the matter of attorney fees and
costs are left to the discretion of this Honorable Court, that the request be denied because there is
absolutely no evidence that has been presented that the Defendant was arbitrary or capricious or
has acted in bad faith in this matter.

CONCLUSION

For the reasons and defenses listed above, the Defendant respectfully requests that this
Honorable Court deny the Petitioner? Writ of Mandamus and all other relief requested therein and
accordingly dismiss this litigation with all costs assessed to the Petitioner.

Respectfully submitted,

LAW OFFICE OF BERNARD L. CHARBONNET, JR. APLC

Davin M. FINK, BAR NO. 33550
One Canal Place

365 Canal Street

Suite 1155

New Orleans, Louisiana 70130
Phone: (504) 5610996

Fax: (504) 561-7850

 

 

17 Exhibit B, Defendant?s response to Public Records Request dated May 3, 2017.

9 Marjorie Esman 12. Leon A. Cannizzaro, Jr., Defendant?s Opposition to Writ of

 

and

J. EDWARD MCAULIFFE, 

ORLEANS PARISH DISTRICT OFFICE

619 S. White Street
New Orleans, Louisiana 70119
Phone: (504) 822-2414

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing pleading has been served upon all interested

parties by facsimile, hand delivery, courier, overnight mail, or in the United States mail, pr0perly

addressed and ?rst-class postage pre-paid, this 10th day of July 2017.

f/Z/

DAVID M. FINK

 

 

10 Marjorie Esman v. Leon A. Cannizzaro, J11, Defendant?s Opposition to Writ of

Mandamus