INTI-IE SUPREME COURT OF LOUISIANA NO. CHARLES MALDONADO RESPONDENT VERSUS LEON A CANNIZZARO, IR., IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY FOR ORLEANS PARISH APPLICANT APPLICATION FOR WRIT OF CERTIORARI OR SUPERVISORY REVIEW TO REVIEW THE JUDGMENT OF THE FOURTH CIRCUIT COURT OF APPEAL IN CASE NO. AF FIRMING THE IUDGMENT OF THE HONORABLE KERN A. REESE, JUDGE PRESIDING, CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, CASE NO. 2017?04660, DIVISION SECTION ORIGINAL WRIT APPLICATION OF THE STATE OF LOUISIANA, APPLICANT (VOLUIVIE 1 OF 2) FOR ORAL LEON A. CANNIZZARO, JR. District Attorney Parish of Orleans Scott G. Vincent, Bar No. 14478 Assistant District Attorney Parish of Orleans 619 S. White St. New Orleans, LA 70119 Phone: (504) 822-2414 Facsimile: (504) 571?2928 Email: svincent@orleansda.com TABLE OF CONTENTS rag STATEMENT OF CONSIDERATIONS SUPPORTING GRANTING OF WRIT 2 REQUEST FOR ORAL ARGUMENT 4 STATEMENT OF THE CASE AND FACTS 5 ISSUES PRESENTED . 3 SUMMARY OF ARGUMENT 8 LAW AND ARGUMENT 8 CONCLUSION 18 I VERIFICATION AFFIDAVIT . l9 EXHIBITS 1. Judgment issued by the Louisiana Fourth Circuit Court of Appeal EXHIBITS CONTAINED ONLY IN APPENDIX 2. Record of the trial court lodged in the Fourth Circuit Court of Appeal 3. Trial Transcript 4. Answer to Appeal I 5. Appellate Brief ?led by the Appellant 6. Appellate Brief ?led by the Appellee? I 7. Motion for Leave to File Incorporated State?s Post Oral Argument Memorandum and to Supplement the Record 8. Order issued by the Fourth Circuit on September 19, 2018 9. Af?davit ?led on behalf of the City of New Orleans in Beckett v. Serpas 10. Reasons for Judgment issued by the trial court in Beckett v. Serpas STATEMENT OF CONSIDERATIONS SUPPORTING GRANTING 0F WRIT- This litigation centers on the public records request sent by the plaintiff, Charles Maldonado, to the Orleans Parish District Attorney?s Of?ce requesting and all Subpoenas? delivered to witnesses begirming'lan. 1, 2016 through the date of this request The court of appeal af?rmed the judgment of the trial court granting, in part, the plaintiff?s petition for writ of mandamus and ordering Orleans Parish District Attorney Leon A. Cannizzaro, Jr. to furnish to plaintiff all Subpoenas? issued between January 1, 2016 and April 27, 2017 in all closed ?les. I I Consideration of this writ application because the decisions of the trial - court and the court of appeal con?ict with the of this Court, and the trial court . and the appellate court have erroneously interpreted or applied the constitution or a law of this state and the decision will cause material injustice or signi?cantly affect the public interest. As explained more fully below, a public body only need make a record in its custody available in the particular format in which the record is maintained, and a public body is not required to perform a records search which is not compatible with its own document retrieval system. Nungesser v. Brown, 667 So.2d 1036 (La. 1996), rehearing denied, 671 So.2d 929 (La. 1996); Hatcher 12. Rouse, 211 So. 3d 431 (La. App. 4th Cir. 2017), writ denied, 221 So. 3d 66 (La. 2017) The Orleans Parish District Attorney?s Of?ce maintains its criminal records by docket number for cases that are formally accepted and by the suspect? 3 name in cases that are refused. The District Attorney?s Of?ce does not maintain a copy of subpoenas? in a particular ?le or location, nor does the District Attorney?s Of?ce maintain a list of cases in which a Subpoena? was issued. Accordingly, the records request submitted by the plaintiff fails to comport with the Public Records Law in that it fails to reasonably describe the records sought with suf?cient particularity to enable the District Attorney to determine precisely what records are being requested and to locate the records with a reasonable amount of effort. Furthermore, the request is unduly burdensome. See Beckle v. Serpds, 112 So.3d 348 (La. App. 4th Cir. 2013). The uncontroverted evidence adduced at trial was that compliance with plaintiffs request would necessitate the manual review of thousands of case ?les, which would require approximately 9,000 manhours to" accomplish. This estimate was recently corroborated by the District Attorney?s search of its records in another matter. By letter dated October 23, 2017, the New Orleans City Council demanded that District Attorney Cannizzaro furnish numerous items of information concerning the operations of the District Attorney?s Office, including ?[t]he total number of subpoenas? your of?ce sent out in the years 2014, 2015, and 2016.? In complying with this written demand, the District Attorney?s Of?ce incurred $118,656.51 in off-site storage retrieval costs and expended 4,000 manhours in reviewing 50,000 individual scanned ?les and 1,766 boxes of physical ?les.1 The Fourth Circuit distinguished the instant case from Beckett on the basis of the time period for which the records were requested in each case -- Beckett involved a request for records spanning a period of ten years, whereas the instant request involves a substantially shorter period of time, less than sixteen months (January 1, 2016 April 27, 2017). See Maldonado v. Cannizzaro, No. 2018-CA-0177, at 10-11 (La. App. 4th Cir. Oct. 10, 2018).2 The Fourth Circuit erred in focusing on the time period for which the ?les were requested in each case. The time period over which requested documents Span is meaningless in the assessment of burdensomeness. The critical factor is the number of ?les and the contents thereof. While the Beckett opinion does not re?ect the number of Public Integrity Bureau (PIB) ?les implicated by the records request made in that case, it cannot be genuinely disputed -- and no evidence has been presented otherwise -- that the Orleans Parish District Attorney?s Of?ce generates signi?cantly more criminal ?les in a sixteen-month period than the NOPD Public Integrity Bureau receives formal, police misconduct complaints during a ten?year period. Furthermore, the determination of unduly burdensomeness in Beckett was based not so much on the time Span involved as it was on the fact that the Public Integrity Bureau did not maintain its records in a manner consistent with the records request and that in order to comply with the records request, the Bureau would have to review each of its ?les separately. Thus, Beckett stands for the proposition that a records request which does not correlate to the manner in which the requested records are maintained is inherently undulylburdensome. There is a marked distinction between 'a request by a private citizen for information and a demand made by a policy making board, such as the New Orleans City Council, which controls the budget of the District Attorney?s Of?ce. In the present case, the District Attorney produced the information requested by the City Council because of the economic duress exerted over him by the Council. 2 A copy of the Fourth Circuit?s ruling is attached hereto as Exhibit 1. 3 REQUEST FOR ORAL ARGUMENT The primary issues raised in the present case concern the proper format in which a request for public records must be made and the degree of burdensomeness to which a records custodian may lawfully be subjected in order to comply with a request. The request at issue in seeks all Subpoenas? issued between January 1, 2016 and April 27, 2017 without specifying any particular docket number, defendant/suspect?s name, or item number, which is the manner in which the District Attorney?s Of?ce maintains its criminal records. Compliance with a written demand made by the New Orleans City Council for similar information necessitated that District Attorney?s Office conduct an exhaustive search of its records in order to locate and retrieve the documents requiring the expenditure of approximately 4,000 manhours in reviewing 50,000 individual scanned files and 1,766 boxes of physical ?les and $118,656.51 in off-site storage retrieval costs. This Honorable Court should provide guidance as to the fundamental issues raised herein, namely, whether requests for public records that fail to correlate to the manner in which records are maintained by a public entity are permissible under the Public Records Law and whether the Public Records Law obligates a public entity to comply with a public records request that will require severalthousand manhours and the eXpenditure of thousands of dollars in record retrieval costs to satisfy. In the final analysis, this case presents a critical issue faced by all bodies, namely, whether a public body is required under the Public Records Law to comply with a public records request which will require the expenditure of thousands of manhours thousands of dollars in retrieval costs. If the answer is in the af?rmative, as the trial court the appellate court held, the Applicant herein would request a written opinion clearly stating so by this Honorable Court, the highest court in the state of Louisiana, so as to leave no doubt as to the scope of Applicant?s, as well as that of any other public body, obligations under the Public Records Law. The State respectfully requests that this Honorable Court grant the instant writ application, issue a brie?ng schedule, and set the matter for oral argument so that the issues raised in the writ application may be fully briefed by the parties hereto and by other interested parties, and that the Court may issue a substantive ruling addressing the fundamental constitutional and statutory issues raised herein. nwn?H- STATEMENT OF THE CASE AND FACTS On April 27, .2017, the plaintiff, Charles Maldonado (hereinafter referred to as ?Maldonado?), sent an email to Orleans Parish District Attorney Leon A. Cannizzaro, Jr. requesting ?[a]ny and all Subpoenas? delivered to witnesses beginning I an. 1, 2016 through the date of this request R., p. 137.3 On May 2, 2017, the District Attorney reSponded, in pertinent part, as follows: 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 this Of?ce [sic] 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 [sic] are not readily identi?able and locatable, and the retrieval costs involved, the District Attomey?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. R., pp. 141-144. On May 15, 2017, Maldonado ?led a Petition for Writ of Mandamus against the District Attorney seeking to compel production of the requested records. The petition sought attorney?s fees and costs pursuant to La. R.S. and alleged that the District Attorney was arbitrary and capricious in failing to reSpond to the records request. R., pp. 1-15. On May 22, 2017, Maldonado issued a second records request to the District Attorney as follows: Any and all records related to the use of so?called Subpoenas,? including but not limited to log entries, records showing time of service, records of returns, ?les in a computerized or paper ?ling system, meeting notes with witnesses who received them, any other case notes re?ecting their use, written communications with witnesses who received them, written communications with attorneys for those witnesses, written communications with others regarding subpoenas,? and other records maintained by ADAs, clerks, secretaries or by the of?ce regarding their use. Timeframe for this request is January 1, 2016?present (May 22, 2017). R.., p. 145 . The District Attorney responded to this request on May 25, 2017, in pertinent part, as follows: The records request fails to describe a speci?c public record in the Orleans Parish District Attorney?s Of?ce?s custody or control. The Orleans Parish District Attorney?s Office does not maintain a copy of subpoenas in a particular ?le or location, nor does the District Attorney?s Of?ce maintain a list of cases in which a subpoena was issued. Under the Public Records Law, a records 3 All record citations are to the trial court record lodged in the Fourth Circuit Court of Appeal, a copy of which is attached hereto as Exhibit 2. 5 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. (Citations omitted). R., pp. 152-153. The May 25, 2017 response further reiterated that the records request was overly broad, burdensome, and expensive. Id. In an attempt to resolve the matter, the District Attorney invited plaintiff counsel to a face?to-face meeting on May 25, 2017 to explain the manner in which records are maintained by the District Attorney? 3 Of?ce and the exhaustive investigation necessitated by the plaintiffs request. The District Attorney requested that Maldonado submit a narrower records request which comported with the?Public Records Law. R., p. 124, para. 6 (Joint Stipulations). Following the meeting, Maldonado submitted a third records request on May 30, 2017, seeking . the following: Any and all subpoenas? issued to witnesses or other parties as part of the following cases: State of La. v. Dale Lambert, case number 517-162 State of La. Chevroun Smith, case number 514-924 State of La. v. Philip Gibson, case number 506-743 State of La. v. Karl Peters, case number 491-939 State of La. V. Darryl Griffin, case number 479?35 9 State of La. v. Durelle Bowens, case number 507?266 State of La. V. Dwayne Diaz, case number 518-162 State of La. v. Jennifer Gaubert, case number 517-669 State of La. v. Nathaniel Payton, case number 486-528 State of La. v. Jerome Gibson, case number 512-137 R., p. 156. The District Attorney made six of the requested case ?les available at time of trial for viewing. R., p. 124, para. 11 (Joint Stipulations). Also on May 30, 2017, Maldonado requested all D.A. subpoenas maintained or saved in the personal case notes or computer ?les of certain named assistant district attorneys from December 1, 2016, through May 30, 2017, to which the District Attorney responded on June 2, 2017. R., pp. 158-161. On June 7, 2017, Maldonado issued another public records request, asking for ?[a]ny and all subpoenas? maintained or saved in the personal case notes or computer files of all assistant district attorney?s.? R., p. 164. The District Attorney responded to that request on the same day as follows: To the extent your request seeks disclosure of the personal case notes of assistant district attorneys, personal case notes are excepted from public view under La. RS. To the extent the request seeks disclosure of subpoenas? maintained or saved in the computer files of all assistant district attorneys, the request fails to describe a specific public record in the Orleans Parish District Attomey?s Office?s custody and control. The Orleans Parish District Attorney?s Of?ce does not maintain a copy of subpoenas in a particular computer file or location, nor 6 does the District Attorney?s Of?ce maintain a list of cases in which a subpoena was issued. - Further, 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. (Citations omitted). R., pp. 162-163. On July 25, 2017, Maldonado ?led. a First Amended and Restated Petition for Injunctive and Declaratory Relief, wherein he alleged that the District Attorney failed to properly respond to the records requests made by him, to which the District Attorney ?led exceptions. The amended petition seeks compliance with the requests and a declaration that the DA. subpoenas are not subject to exception. pp. 17?46. The matter eventually proceeded in a summary manner, and a trial was held on October 23, 2017, at which Maldonado testi?ed on his own behalf and Assistant District Attorneys Donna Andrieu, Chief or Appeals, and David Pipes, Chief of Trials, testi?ed on behalf of the I District Attorney. By written judgment rendered November 22, 2017, the trial court ordered the District Attorney to produce: (1) all subpoenas or D.A. Notices? for ?les that were screened and charges were refused, from January 1, 2016 to April 27, 2017,-by November 30, 2017; and (2) all subpoenas or D.A. Notices? in all closed ?les from January 1, 2016, to April 27, 2017. The judgment decreed that the DA. subpoenas contained in any open ?les are exempt from production. Plaintiffs request for attorney?s fees and costs was granted, in an amount to be determined at a later date. The trial court also ruled that the District Attorney- was not arbitrary and capricious. Finally, the judgment ordered the parties to appear for a status conference on December 13, 2017, to update the Court as to the process of reviewing and producing D.A. subpoenas from the closed or refused ?les. R., pp. 183-185. The District Attorney subsequently ?led an appeal asserting that the trial court erred in partially granting Maldonado?s public records requests and in granting Maldonado?s request for attorney?s fees and costs. R., pp. 186?193. Maldonado answered the appeal, asserting that the trial court erred in not ordering the production of the ?les in all open cases and in failing to ?nd that the District Attorney was arbitrary and capricious and requesting attorney?s fees incurred in defending the appeal. See Exhibit 4. By Judgment rendered on October 10, 2017, the Fourth Circuit af?rmed the trial court?s Judgment. See Fourth Cir. No. 2018-CA-0177, reported at 2018 WL 4923 545 and attached hereto as Exhibit 1. The present application timely follows. ASSIGNMENTS OF ERROR (1) The trial court erred in ordering the District Attorney to produce all subpoenas or D.A. Notices? from January 1, 2016 to April 27, 2017 in all refused and closed ?les. (2) The trial court erred in awarding costs and attorney?s fees to the plaintiff. SUMMARY OF ARGUMENT The records request submitted by plaintiff fails to comport with the Public Records Law in that the request fails to reasonably describe the records sought with suf?cient particularity to enable the District Attorney to determine precisely What records-are being requested and to locate the records with a reasonable amount of effort. Furthermore, the request is unreasonably- burdensome as it will require the District Attorney to expend thousands of dollars in record retrieval costs and thousands of manhours to compile the requested information, which will interfere with the District Attorney?s constitutionally mandated duty to prosecute criminal violations. Accordingly, the trial court erred in partially granting plaintiff?s public records request and in granting his request for attorney?s fees and costs. LAW AND ARGUMENT Plaintiff?s request fails to reasonably describe the records sought with suf?cient particularity to enable the District Attornev to determine precisely what records are beingr requested and to locate the records with a reasonable amount of effort. A records custodian?s statutory duty under the Public Records Law is ?to provide immediate access to records that are available.? Altiance for A?ordable Energy 12. Frick, So.2d 1126 (La. App. 4th Cir. 1997) (emphasis added), citing LSA-R.S. custodian shall present any public record to any person of the age of majority who so requests?). Where a records custodian believes that a requested record is not a public record-it": or is otherwise exempt from the Public Records Law, the custodian must within three days of the receipt of the request notify in writing the person making such request of his determination and the reasons therefor. LSA-R.S. Thus, the Public Records Law envisions that a records request be such that, within a relatively short turn?around time, the custodian can satisfy the request or provide a response as to Why the requested record is not subject to disclosure. Accordingly, a public records request must correlate to the manner in Which records are maintained by the public entity, and a public entity is not required to perform a search for records which is not compatible with its own document retrieval system. Hatcher 12. Rouse, 211 So. 3d 431 (La. App. 4th Cir. 2017), writ denied, 221 So. 3d 66 (La. 2017). This Court has speci?cally rejected the ratio decidendi of the Fourth Circuit?s ruling in the present case in Nungesser 12. Brown, 667 So.2d 1036 (La. 1996), rehearing denied, 671 So.2d 929 (La. 1996). In Nungesser, 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 LIGA 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 speci?cally 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 1134-35 (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 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; 51? 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, this Court reversed the ruling of 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 affirming the trial court?s 9 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). Thus, Nungesser stands for the proposition that a records custodian is not required to compile a list in order to respond to a public records request but rather need only make the record available in the particular format in which it is maintained. In Hatcher v. Rouse, Hatcher sent a letter to the ?Orleans Parish Corners [sic] Of?ce? requesting ?all the records that the Corners [sic] Of?ce possesses in relationship [sic] to the above captioned item.? The item number referenced in the letter was ?1-13007087.? In responding to two requests by the plaintiff, the coroner noted that said item number did not correlate to any of his ?les, but that he would be happy to perform another search with more speci?c information. Id, at 43 5-436. The Fourth Circuit found that the trial court had properly dismissed the plaintiff?s writ of mandamus, noting that the coroner?s response was proper because ?Dr. Rouse was unable to even identify any records. based on the information provided by Mr. Hatcher.? Id, at 437. Following this point, the Court concluded: custodian of public records cannot be expected to produce records that it cannot identify.? Hatcher 12. Rouse stands for the proposition that a public records request must correlate-to the manner in which the records are maintained by the public entity, and a public entity is not required to perform a search for records which is not compatible with its own document retrieval system. Hatcher 12. Rouse is in line with cases interpreting the federal counterpart to Louisiana?s Public Records Law, the Freedom of Information Act (F 01A). was not intended to reduce government agencies to full?time investigators on behalf of requesters. Therefore, agencies are not required to maintain their records or perform searches which are not compatible with their own document retrieval systems.? Assassination Archives Research Ctr, Inc. v. CIA, 720 F.Supp. 217, 219 (D.D.C.1989), aff?d, 1990 WL 123924 (DC. Cir. Aug. 13, 1990), citing Blakey v. Department ofJusrfce, 549 F.Supp. 362 720 grounds). is F.2d 215 (DC. Cir. l983)(modified on other the requester?s responsibility to frame requests with sufficient particularity to . . . enable the searching agency to determine precisely what records are being requested.? Assassination Archives, 720 F.Supp. at 219, quoting Yeager v. DEA, 678 F.2d 315, 326 (DC. Cir. 1982). 01A requests ?reasonably describe? records when the description would ?enable[] a 10 professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort.? - Dale v. IRS, 238 F.Supp.2d 99, 104 (D.D.C. 2002). See also Sonds v. Ettij 391 F.Supp.2d 152, 160 (D.D.C. 2005), 2006 WL 3093 808 (DC. Cir. June 22, 2006)(Drug Enforcement Administration, which indexed files by names, dates of birth, and social security numbers, reasonably determined that requests for information about an arson, apparent surveillance of certain streets or neighborhoods, vehicles, and requests for additional information, were either too vague for it to process or not amenable to a search); Thomas v. Comptroller of Currency, 684 F.Supp.2d 29, 33 (D.D.C. because the files are arranged by the name of the supervised national bank, federal branch or agency, defendant could not reasonably be expected to conduct a search of its records without the name of such an entity?). As in Hatcher, Maldonado did not identify any speci?c record he wished the District I Attorney to produce. Instead, he tasked the District Attorney with undertaking a ??shing expedition? to review all of the criminal files in his custody in search of Subpoenas? issued between January 1, 2016 and April 27, 2017. Just as the coroner in Butcher denied the request, so did the District Attorney deny Maldonado?s request. Furthermore, just as the coroner in Hatcher had invited the plaintiff to make a new request with more speci?c information, the District Attorney, at the May 25, 2017 meeting with counsel for Maldonado, invited Maldonado to make a more reasonable request, after further explaining the difficulties and burden of fulfilling his initial request. Maldonado refused to submit a narrower request which comported with the Public Records Law. The Records Request is Undulv Burdensome. 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, 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 11 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 public entity?s constitutional and legal duties. Beckett v. Serpas, 112 So.3d 348, 353 (La. App. 4th Cir. 2013); Vandenweghe v. Parish ofJe??erson, 70 So.3d 51, 58 (La. App. 5th Cir. 2011), writ denied, 71 So.3d 289 (La. 2011); EZZiott v. Dist. Attorney of Baton Rouge, 664 So.2d 122 (La. App. Cir. 1995, writ denied, 664 So.2d 440 (La. 1995). The court in Amance for A?ordable Energy 12. Frick, 695 So.2d 1126 (La. App. 4th Cir. 1997), 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.? Friclt, 695 So.2d at 1136. In the present case, plaintiff?s records request is unduly burdensome, a point explicitly recognized by the trial in its oral reasons for judgment issued on the date of the trial: Now, a great deal of time and effort has been put into putting forth the argument that it is a burden upon the of?ce and unduly burdensome. Yes, that very well may be the case. Trial Transcript, p. 145. The unduly burdensome nature of plaintiff? records request was demonstrated through the testimony of Chief of Appeals Donna Andrieu and Chief of Trials David Pipes, as well as the exhibits introduced at trial.4 Chief Andrieu testi?ed that the ?les are arranged by defendant name and case number, and that there is no index that would show whether a DA. subpoena is contained within a ?le. Moreover, there is no separate ?le that contains all DA. subpoenas issued by the of?ce, and no list of cases in which a DA. subpoena was issued. Thus, to ?nd a DA. subpoena, the entire ?le would have to be manually searched. Trial Transcript, pp. 57?63, 70, 83, 84. Chief Pipes also testi?ed as to the processes that would have to be employed to undertake a search for the requested records and the burden it would place on the operations of the District Attorney?s Of?ce. Chief Pipes testi?ed that Maldonado?s request included approximately 8,000 to 9,000 cases, which would require about 9,000 manhours to review the ?les. He explained that ?rst 4 The burdensome nature of plaintiff?s request is evidenced by his own conduct. -Maldonado had absolutely no interest in reviewing records made available to him to search of the documents he desired. After he was noti?ed that several ?les speci?cally requested in his third, May 30, 2017 request were available for his inspection, Maldonado. indicated that he did not wish to review the ?les, apparently preferring that the District Attorney undertake this task for him, thereby ?reduc[ing] [the District Attorney] to full-time investigator[] on behalf of requester[]. Assassination Archives Research Cit, Inc. CIA, 720 F.Supp. 217, 219 (D.D.C.1989), Wei, 1990 WL 123924 (DC. Cir. Aug. 13, 1990). 12 the ?les would have to be located, as a substantial portion of closed ?les are stored offsite. Additionally, privileged and personal information contained in the ?les would have to be redacted before any documents could be turned over. Chief Pipes Opined that considering the volume of work, a number of attorneys would have to be pulled from their regular duties and be dedicated full-time to the task. He further explained that because of budget restrictions, assistant district attorneys have no support staff or administrative staff. Trial Transcript, pp. 108-117, 130, 133, 134. These processes were further substantiated by the af?davits ?led prior to trial of Chief Pipes and John Rohr, the closed records supervisor for the District Attorney?s Of?ce. R., pp. 106-111. I Despite the efforts that the District Attorney would have to employ to satisfy his public records requests, Maldonado?s position has been that no amount of burden or dif?culty should relieve a public agency of the obligation of locating whatever individual documents a person requests, as borne out not only by his pleadings and positions through counsel, but also by his testimony at trial. See Trial Transcript, pp. 37, 44, _45. In order to comply with plaintiff 5 records request, the District Attorney will ?rst have to determine whether a particular ?le is Open or closed since ?[r]ecords pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated? are exempt from the Public Records Law ?until such litigation has been ?nally adjudicated or otherwise settled.? See LSA-R.S. A substantial portion of the closed ?les are stored at an off~site facility, which charges a fee for the retrieval of each ?le. Given the sheer number of ?les that will have to be retrieved from storage, the District Attorney will incur thousands of dollars in retrieval costs alone. In fact, the District Attorney has incurred $118,656.51 in storage retrieval costs in responding to a written demand made by the New Orleans City Counsel for similar information. After retrieval of the closed ?les from off?site storage, the District Attorney will have to review each ?le in order to determine if a subpoena? is located in a ?le. In order to properly review each ?le to locate 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 are retained or redacted, assistant district attorneys will have to conduct a thorough review for each of these ?les for the requested documents. Criminal ?les of the District Attorney?s Of?ce are maintained by docket 13 number for cases that are formally accepted and by suspect?s name for cases that are refused. The ?les do not contain an index of the contents of each ?le. So the only way to comply with plaintiff?s request is to manually review page by page each of the tens of thousands of closed ?les in order to determine if the requested document is contained in each ?le. This process could hardly be more burdensome or expensive to complete. The costs associated with plaintiff?s request are devastating in light of the $600,000.00 cut in the Orleans Parish District Attorney?s Of?ce?s budget at the end of 2016. As previously noted, the crux of the evidence presented at trial on behalf of the District Attorney as to the burdensome nature of plaintiff?s request is that the District Attorney?s Of?ce will necessarily incur approximately 9,000 manhours in order to comply with plaintiff? 3 request. To put this ?gure in perspective, one employee will have to be reassigned from his/her normal duties to conduct a search over the course of ?ve years, or ?ve employees for one year, or employees for three months. The plaintiff put on no evidence to rebut the defense?s 9,000 manhour estimate. The defense?s estimate as to the number of manhours and the amount of retrieval costs that the District Attorney will incur in responding to plaintiff 3 records request are substantiated by the District Attorney?s recent compliance with a demand for similar information made by the New Orleans City Council. On October 23, 2017, the District Attorney received a written demand from the City Council for ?critical information and data on criminal cases? handled by the District Attorney?s Of?ce, including ?[t]he total number of subpoenas? your of?ce sent out in the years 2014, 2015, and 2016.? A copy of the OQtO-ber 23, 2017 demand letter from the City is submitted as an exhibit to the Motion for Leave to File Incorporated State?s Post Oral Argument Memorandum and to Supplement the Record, attached hereto as Exhibit.5 In order to comply with the City Council?s request, District Attorney?s Of?ce personnel manually reviewed, page by page, 50,000 individual scanned ?les and 1,766 boxes of physical ?les. The search took 4,000 man?hours to complete, requiring more than 100 employees to participate in the review, including working nights and weekends, and the District Attorney incurred retrieval costs from the off?site storage facility in the amount of $118,656.51. See July 3, 2018 letter by the District Attorney submitted as an exhibit to the Motion for Leave to 5 The Motion for Leave to File Incorporated State?s Post Oral Argument Memorandum and to Supplement the Record was denied by Order issued by the Fourth Circuit on September 19, 2018. See Exhibit 8. 14 File Incorporated State?s Post Oral Argument Memorandum and to Supplement the Record, attached hereto as Exhibit 7. After completion of the search in satisfaction of the City Council? demand, the State forwarded to plaintiff a copy of the documents in satisfaction of his request. These subsequently undertaken efforts demonstrate that compliance with Maldonado?s' request or any future public records request from any-individual?along the same lines -- is prohibitively expensive. Simply put, complying with Maldonado?s rgquest will interfere with the District Attorney?s constitutional mandate of prosecuting criminal cases because the District Attorney will have to divert his assistant district attorneys and, a massive amount of resources to conduct file review. And after that ?le review is complete, Maldonado or any other person, after taking mere minutes to draft one or two lines constituting a public records request (See R., p. 44), can ask for another species of documents requiring thousands of manhours and upwards of a hundred thousand dollars or more (in record retrieval costs. This leaves any public agency, not just the District Attorney, in a precarious position and susceptible to immense public records requests at enormous cost to the agency. An agency?s entire budget could be wiped out by a few public records requests, and the public work with which the agency is constitutionally charged would grind to a complete halt. The Fourth Circuit tackled a similar, albeit less onerous, records request in Beckett, supra. In that matter, the plaintiff made a public records request for, inter Ialia, ?all documents generated for the past ten years as a result of investigations by the Public Integrity Bureau (FIB) into allegations that city police officers violated the department manual.? Beckett, 112 So.3d at 350. The Fourth Circuit, af?rming the trial court, found that this request was overly broad, as the files were maintained by o?cer name and/or file number rather than by alleged offense, which would necessitate a review of all files in order to locate the documents requested. Id. The Court concluded, f?Here, given the particular facts and circumstances of this case, e. the volume of the records requested and the manner in which the files are categorized, the City had demonstrated that segregating ten years of PIB ?les would be Unreasonany burdensome.? Beckett, 112 So. 3d at 353. The Fourth Circuit distinguished the instant case from Beckett on the basis of the time period for which the records were requested in each case -- Beckett involved a request for records spanning a period of ten years, whereas Maldonado?s request involves a substantially shorter period of time, less than sixteen months (January 1, 2016 April 27, 2017): 15 The DA. argues that the records request in the present case is even more burdensome than in Beckett. Considering that Mr. Maldonado?s request involves a much shorter period of time (January 1, 2016 to Apri127, 2017), than the ten- year period sought in Beckett, we disagree. Maldonado v. slip at 10-11. The Fourth Circuit erred in focusing on the time period for which the ?les were requested in each case. The time period over which requested documents span is meaningless in the assessment of burdensomeness. The critical factor is the number of ?les and the contents thereof. While the Beckett opinion does not re?ect the number of Public Integrity Bureau (PIB) ?les implicated by the records request made in that case, it cannot be genuinely diSputed -- and no evidence has been presented otherwise that the Orleans Parish District Attorney?s Of?ce generates signi?cantly more criminal ?les in a sixteen?month period than the NOPD Public Integrity Bureau receives formal police misconduct complaints during a ten-year period. In fact, in Beckett, the determination of unduly burdensome was based strictly onlthe representation contained in the af?davit submitted on behalf of the City of New Orleans that the request was unduly burdensome because the Public Integrity Bureau does not maintain ?les by case description, but rather by name and/or ?le number, and that in Order to comply with the public records'request, the Bureau would have to review each of its ?les separately. In this regard, the af?davit stated as follows: Ms. Beckett?s requests for records . . . are overly burdensome because our of?ce does not maintain records by case description, but rather by name and/or ?le number; and in order to provide responsive records covering the ten year time frame requested our of?ce would have to review each ?le separately. A copy of the City?s af?davit ?led in the Beckett case is attached hereto as Exhibit 9. The trial judge, the-Honorable Kern Reese, accepted the City?s uncontradicted representation that the request was unduly burdensome without any evidence of the volume of cases handled by the Bureau: Besides the very private nature of the information and those interests outweighing the public interest Ms. Beckett may have in the documents, the request was complex, demanding, and not separated in such a way to make tracking the information simpler. As such, the Court ?nds that it would be overly burdensome for the City to produce such a large, amalgamated request. In re Public Records Bequest of Catherine Beckett v. Serpas, No. 2012?1534, 2012 WL 9245897 (Orleans Parish Civil District Court June 5, 2012). Likewise, the Fourth Circuit in Beckett did not articulate any evidence as to the volume of cases handled by the Bureau and relied exclusively on the City?s representation that the 16 request was unduly burdensome because the request failed to corelate with the manner in which records are maintained by the City and would therefore require the review of every PIB ?le: The City also argued that the requests in items 2-4 were overly burdensome because the PIB records are maintained by of?cer's name rather than by violation or case description. Thus, the City asserted that it would have to review . every PIB ?le for the past ten years in order to identify the ones involving the speci?c rule violations sought by Beckett. at: are In reasons for judgment, the trial court stated that Beckett was only entitled to the documents related to her own PIB investigation (item 1), which were previously provided. The trial court denied Beckett?s other requests, reasoning that the PIB ?les contained private information of law enforcement of?cers, which outweighs any public interest that Beckett might have. Additionally, the requests were deemed overly burdensome because they were complex, demanding, and not separated in such a way to make tracking the information simpler. Attorney's fees, costs and penalties were not awarded. 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. Id. Here, given the particular facts and circumstances of this case, i. the volume of the records requested and the manner in which the ?les are categorized, the City has demonstrated that segregating ten years of PIB ?les would be unreasonably burdensome. - Beckett, 112 So.3d at 350, 351, 353.6 Thus, Beckett stands for the proposition that uncontroverted testimony submitted on behalf of a public entity that a records request is unduly burdensome because the request does not corelate with the manner in which the entity?s records are maintained and that, in order to satisfy the request, the entity will have to review all of its records is suf?cient for the entity to satisfy its burden of proof. Furthermore, Hatcher v. Rouse was decided in 2017, four years after Beckett was handed down. Hatcher v. Rouse holds, consistent with the federal jurisprudence interpreting the Freedom of Information Act, that a public records request must correlate to the manner in which the ?les are maintained by the public entity, and a public entity is not required to perform a search for records in its custody which is not compatible with its own document retrieval system. Hatcher 12. Rouse requires that a public records request reasonably describe the records sought so as to enable the public entity to locate the record with a reasonable amount of effort and within a relatively short period of time. See discussion above on pages 9?11. If a request fails to comport with this procedure, the public agency is not required under the public Records 5 Interestingly, although the Beckett court referred to ?the volume of the records requested,? along with ?the manner in which the ?les are categorized,? in support of its ?nding of unreasonably burdensome, no evidence whatsoever was presented as to ?the volume of the records requested.? l7 Law to comply with the request. Hatcher v. Rouse does not require that the agency prove that the request is unduly burdensome. Accordingly, assuming arguendo that the request in the present request is less burdensome than the request in Beekert, which is vigorously denied, the request nonetheless fails to reasonably describe the records sought with sufficient particularity to enable the District Attorney to determine precisely What records are being requested and to locate the records with - a reasonable amount of effort and time. As such, in accordance with Hatcher 12. Rouse, the request fails to comply with the Public Records Law, and the District Attorney is therefore not required to prove that the request is unduly burdensome. CONCLUSION AND PRAYER For the reasons set forth above, the defendant/applicant, Orleans Parish District Attorney Leon A. Cannizzaro, Jr., respectfully prays that this Honorable Court grant the instant writ application and set the matter for oral argument so that the issues raised in the writ application may be fully briefed by the parties hereto and by other interested parties and the Court may issue a substantive ruling addressing the critical issues raised herein. The defendant/applicant further prays that, after due proceedings had, this Honorable Court reverse the judgment of the trial court, as affirmed by the of appeal, partially granting plaintiff?s public records request and ordering that the District Attorney furnish the plaintiff with a copy of all Subpoenas? issued between January 1,2616 and April 27, 2017 in closed files and awarding the plaintiff costs and attorney?s fees. espectfully Submitted, Scott G. Vincent, Bar No. 14478 Assistant District Attorney Orleans Parish 619 South White Street New Orleans, LA 70119 Telephone: (5 04) 822?24 1 4 18 VERIFICATION AFFIDAVIT STATE OF LOUISIANA PARISH OF ORLEANS BEFORE ME, the undersigned authority, appeared Scott G. Vincent, to me personally known, who, after being duly sworn, did depose and say: 1. That he is an Assistant District Attorney for the Parish of Orleans. 2. That he has reviewed the foregoing application and attachments thereto and that the allegations contained therein are truthful. 3. That he has delivered a copy of this application and the attachment thereto to: The Honorable Kern A. Reese Division Orleans Parish Civil District Court 421 Loyola Avenue, Room 308 New Orleans, LA 70112 The Honorable Justin 1. Woods Clerk of Court Fourth Circuit Court of Appeal 400 Royal Street New Orleans, LA 70130 Scott Lehman Sternberg, Esq. 643 Magazine St Ste 402 New Orleans LA, 70130 Counsel for Defendant/Respondent Art Assistant District Attorney SWORN TO AND SUBSCRIBED BEFORE ME, THIS THE 23RD e. .o CTOBER, 2018. 19 CHARLES MALDONADO NO. 2013-CA-0177 VERSUS COURT OF APPEAL LEON A. CANNIZZARO, JR. IN HIS OFFICIAL CAPACITY FOURTH CIRCUIT AS DISTRICT ATTORNEY . FOR ORLEANS PARISH STATE OF LOUISIANA 9: APPEAL FROM . CIVIL DISTRICT COURT, ORLEANS. PARISH NO. 2017-04660, DIVISION Honorable Kern A. Reese, Judge . JAMES F. MCKAY CHIEF JUDGE (Court composed of Chief Judge James F. McKay Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins) SCOTT L. STERNBERG MICHAEL FINKLESTEIN STERNBERG, WHITE, LLC 643 Magazine Street, Suite 402 New Orleans, Louisiana 701.30 COUNSEL FOR DAVID M. PINK THE LAW OFFICE OF BERNARD L. CHARBONNET, IR, A PROFESSIONAL LAW CORPORATION 365 Canal Street, Suite 1155 New Orleans, Louisiana 70112 ?nd- SCOTT G. VINCENT ASSISTANT DISTRICT ATTORNEY ORLEANS PARISH 619 South White Street New Orleans, Louisiana 70119 COUNSEL FOR DEFENDANT AFFIRMED, MOTION TO DISMISS APPEAL ANSWER TO APPEAL RENIANDED OCTOBER 10, 2013 In this mandamus action, defendant, Leon A. Cannizzaro, Jr., District for Orleans Parish appeals the November 22, 2017 judgment rdering the DA. to turn over certain ?les to plaintiff, Charles Maldonado .. Maldonado?), pursuant to his public records requests. lVlr. Maldonado answered the appeal seeking a modi?cation of the judgment, alleging that the trial court erred in not ordering production of all open ?les and in failing to ?nd that the DA. was arbitrary and capricious. Mr. Maldonado also seeks attorney?s fees for work performed on this appeal. For the reasons that follow, we af?rm the trial court?s judgment and ?nd no merit in the assignments of error set forth in Mr. Maldonado?s answer to the appeal. We remand to the trial court for a determination of Mr. Maldonado?s additional attorney?s fees. STATEMENT OF FACTS AND PROCEITURAL HISTORY On April 27, 2017, Mr. Maldonado, a staff with The issued a public records request to the DA. pursuant to the Louisiana Public Records Law, La. R.S. 44:1, et seq. The request sought ?[a]ny and all Subpoenas? I The Lens is a non-pro?t investigative journalism website based in New Orleans. 1 I delivered to witnesses beginning an. 1, 2016 through the date of this request On May 2, 2017, the DA. responded, in pertinent part, as follows: 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 this Of?ce [sic] 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 [sic] are not readily identi?able and locatable, and the retrieval costs involved, the District Attorney?s OffiCe submits that obtaining the records requested by you and preparing them for public review, including redacting and removing privileged information and documentation there?om and determining whether there is a potential for ?n?ther criminal litigation, would be unreasonably burdensome. Accordingly, your request is denied at this time. On May 15, 2017, Mr. Maldonado ?led a Petition for Writ of Mandamus against the DA., seeking to compel production of the requested records. The petition sought attorney?s fees and costs pursuant to La. R.S. 44:3503) and alleged that the DA. was arbitrary and capricious in failing to respond to the records request. On May 22, 2017, Mr. Maldonado issued a second records request to the DA. as follows: Any and all records related to the use of so-called Subpoenas,? including but not limited to log entries, records showing time of service, records of returns, ?les in a computerized or paper filing system, meeting notes with witnesses who received them, any other case notes reflecting their use, written communications with witnesses who received them, written communications with attorneys for those witnesses, written Communications with others regarding subpoenas,? and other records maintained by ADAS, clerks, secretaries or by the office regarding their use. Timeframe for this request is January 1, 2016-present (May 22, 2017). On May 25, 2017, the DA. responded, in pertinent part, as follows: The records request fails to describe a Speci?c public record in the Orleans Parish District Attorney?s Of?ce?s custody or control. The Orleans Parish District Attorney?s Of?ce does not'maintain a Copy of subpoenas in a particular ?le or location, nor does the District Attorney?s Of?ce 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. (Citations omitted). The May 25, 2017 response ?lrther reiterated that the records request was overly broad, burdensome, and expensive. 2 The parties met on May 25, 2017, in an attempt to resolve the matter. The DA. requested that M. Maldonado submit a narrower records request. Following the meeting, Mr. Maldonado submitted a third records request on - May 30, 2017, seeking the following: Any and all subpoenas? issued to witnesses or other parties as part of the following cases: State of La. V. Dale Lambert, case number 517-162 State of La. v. Chevroun Smith, case-number 514-924 State of La. V. Phillip Gibson, case number 506?743 State ofLa. V. Karl Peters, case number 491-939 State of La. V. Darryl Grif?n, case number 479?359 State of La. V. Durelle Bowens, case number 507-266 State of La. V. Dwayne Diaz, case number 518:162 State of La. v. Jennifer Gaubert, case number 517-669 State of La. V. Nathaniel Payton, case number 486-528 State of La. V. Jerome Gibson, case number 512?137 Mr. Maldonado has acknowledged that the DA. made six of the requested case ?les available for Viewing. Also on May 30, 2017, Mr. Maldonado requested all DA. subpoenas maintained or saved in the personal case notes or computer ?les of Assistant District Attorneys Jason Napoli, Laura Rodrigue, Inga Petrovich, and Sara 2The response is dated May 25, 2017. Assistant District Attorney Donna Andrieu testi?ed that she mailed the response on May 25 2017. Mr. Maldonado claims he did not receive the response until a later time, when he asked the of?ce to mail him a copy. a Dawkins from December 1, 2016, through May 30, 2017. On June 2, 2017, the DA. responded, stating that the personal case notes were not subject to a public records request. However, two D.A. subpoenas were turned over in connection with that request. On June 7, 2017, Mr. Maldonado issued a fourth public records request, asking for ?[a]ny and all subpoenas? maintained or saved in the personal case notes or computer ?les of all assistant district attorney?s.? In response, on-lune, 7, 2017, the DA. stated: To the extent your request seeks disclosure of the personal case notes of assistant district attorneys, personal case notes are excepted from public View under La. R.S. To the extent the request seeks disclosure of subpoenas? maintained or saved in the computer ?les of all assistant district attorneys, the request fails to describe a speci?c public record in the Orleans Parish District Attorney?s. Of?ce?s custody and control. The Orleans Parish District Attorney?s Of?ce does not maintain a copy of subpoenas in a particular computer ?le or. location, nor does the District Attorney?s Of?ce maintain a list of cases in which a subpoena was issued. - Further, under the Public Records Law, a public of?cial is relieved 0f the obligation to make a public record available for inspection when doing so would be unreasonably burdensome 0r expensive. (Citations omitted). On July 25, 2017, Mr. Maldonado ?led a First Amended and Restated Petition for Injunctive and Declaratory Relief. Mr. Maldonado states therein that the DA. failed to properly respond to the four separate records requests. The amended petition seeks compliance with the requests and a declaration that the DA. subpoenas are not subject to exception. The matter was tried October 23, 2017. Mr. Maldonado testi?ed regarding his public records requests and the limited responses, which he received. Donna Andrieu (Chief or Appeals), and David Pipes (Chief of Trials) testi?ed on behalf of the DA. Both witnesses explained how the of?ce organized its ?les and why a search for DA. subpoenas would be overly burdensome and expensive. I In a judgment rendered November 22, 2017, the trial court ordered the DA. to produce: (1) all subpoenas or DA. Notices? for ?les that were screened and charges were rejected, from January 1, 2016, to April 27, 2017, by November 30, 2017; and (2) all subpoenas or DA. Notices? in all closed ?les from - January 1, 2016, to April 27, 2017. The judgment decreed that the DA. subpoenas contained in any open ?les are exempt ?'orn production. Mr. Maldonado?s request for attorney?s fees and costs was granted, in an amount to be determined at a later date. The trial court also ruled that the DA. was not arbitrary and capricious. Finally, the judgment ordered the parties to appear for a status conference on I December 13, 2017, to update the Court as to the process of reviewing and producing DA. subpoenas from the closed or rejected ?les. The DA. ?led the present appeal asserting that the trial court erred in partially granting Mr. Maldonado?s public records requests, and in granting Mr. Maldonado?s request for attorney?s fees and costs. Maldonado has answered the appeal, asserting that the trial court erred in not ordering production of the ?les in all open cases, and in failing to ?nd that the DA. was arbitrary and capricious. Additionally, Mr. Maldonado seeks attorney?s fees for defending this appeal. DISCUSSION - . Motion to Dismiss Appeal As a procedural matter, we will ?rst address Mr. Maldonado?s Motion to Dismiss Appeal, which was referred to the merits by order of this Court. After consideration, we deny the motion. Mr. Maldonado seeks to dismiss the appeal arguing that the DA. acquiesced in the judgment based on actions and public statements. Speci?cally, Mr. Maldonado points to a November 15, 2017 written statement made by the Public Information Officer, Ken Daley, that the DA. intended to comply with the judgment when rendered. Mr. Maldonado further relies on the fact that on November 27, 2017, the DA. produced a single document in compliance with the judgment. Finally, he points to a November 30, 2017 press release, wherein the DA. reiterated that the judgment would be complied with. Mr. Maldonado asserts that subsequent to the December 2017 status conference, the DA. chose to reverse its position and ?le an appeal. In opposition to the motion to. dismiss, the DA. argues that its production of a single document in response to only one portion of the trial court?s judgment does not constitute a complete and total acquiescence. The DA. further states that the single document offered lVlr. Maldonado had been located in connection with a. search conducted at the request of the Nevv Orleans City Council. Finally, the . DA. maintains that its attempt to amicably resolve this matter, by offering all documents uncovered in connection with the City Council search, does not. constitute acquiescence in the judgment. We agree. La. C.C.P. art. 2085 provides: An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgnent or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment. As this Court explained in Koemer Lambert: A Professional Law Corp. v. Allstate Ins. Co., 363 s0.2d 546, 547 (La. App. 4th Cir. 1-978), Acquiescence in a judgment is never presumed, and the party alleging abandonment must establish by direct or circumstantial evidence that the party now appealing intended to acquiesce and to abandon his right to appeal. Furthermore, appeals are favored in law, and forfeiture of a party?s right to an appeal through acquiescence should be decreed only when the party?s intention to acquiesce and to abandon his right of appeal is clearly demonstrated. (citations omitted). On the record before us, Mr. Maldonado has not established that the I post-trial actions demonstrate intent to acquiesce in the judgment and to abandOn its right to appeal. Moreover, considering the judicial pronouncement that appeals are favored in law, the motion to dismiss the appeal is denied. Assignment of Error No. I: Partially Granting the Public Records Request The DA. argues that the trial court erred in granting the public records request for DA. subpoenas contained in the closed and rejected ?les from January - l, 2016, to April 27, 2017. For the reasons that follow, we ?nd no merit in this assignment of error. I Article XII, Section 3 of the Louisiana Constitution provides that no person shall be denied the right to ?examine public documents, except in cases established by law.? The Louisiana legislature has codi?ed this right in the Public Records Act, La. R.S. 44:1, et seq. Speci?cally, La. R.S. 44:31 provides: A. Providing access to public records is a responsibility and duty of the appointive or elective of?ce of a custodian and his employees. B. (1) Except as otherwise provided in this Chapter or as otherwise speci?cally provided by law, and in accordance with the- provisions of this Chapter, any person of the age of majority may inspect, copy, or reproduce any public record. (2) Except as otherwise provided in this Chapter or as otherwise speci?cally provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record. (3) The burden of proving that a public record is not subject to inspection, cepying, or reproduction shall rest with the custodian. it is well established that with Article XII, Section 3, the Public Records Law should be eonsn'ued liberally in favor of free and unrestricted access to public documents.? Shane v. Parish ofJe?erson, 2014-2225, p. 9 (La. 12/8/15), 209 So.3d 726, 735 (citing Landis v. Moreen, 2000-1157, p. 4 (La. 2/21/01), 779 So.2d 691, 695). ?Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public?s right to see; to allow otherwise would be an improper and arbitrary restriction on the public?s constitutional rights?. Id. at pp. 9-10, 209 So.3d at 735 (citing In re Matter Under Investigation, 2007?1853, p. 5 (La. 7/1/09), 15 So.3d 972, 989). La. R.S. 44:33 states, in pertinent part: A. (1) When a request is made for a public record to which the public is entitled, the of?cial who has responsibility for the record shall have the record segregated ?om 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. B. (1) If the public record applied for is immediately available, because of its not being in active use at the time of the application, the public record shall be immediately presented to the authorized person applying for it. If the public record applied for is not immediately available, because of its being in active use at the time of the application, the custodian shall certify this in writing to the applicant, and in his certi?cate shall ?x a day and hour within three days, exclusive of Saturdays, Sundays, and legal public holidays, for the exercise of the right granted by this Chapter. Regarding enforcement of a public records request, La. R.S. 44:35 provides, in pertinent part: A. Any person who has been denied the right to inspect, cepy, reproduce, or obtain a copy or reproduction of a record under the provisions of this Chapter, either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in?person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the of?ce of the custodian is located. B. In any suit ?led under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld ?'om the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may View the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court. In Beckett v. Serpas, 2012-1349, pp. 7?8 (La. App. 4 Cir. 3/20/13), 112 So.3d 348, 353, this Court stated: 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. Vandenweghe v. Parish of Je?erson, 11?52, p. 12 (La .App. 5 Cir. 5/24/11), 70 ?So.3d 51, 58, writ denied, 2011-1333 (La. 9/30/11), 71 So.3d 289; Elliott v. District Attorney ofBaton Rouge, 94-1804 (La. App. 1 Cir. 9/14/95), 664 So.2d 122, 126. 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. Id. In this case, the DA. asserts that the exception to the Public Records Law recognized in Becket should be applied here. Based on the testimony of Andrieu and Pipes, the DA. maintains that the requests would require thousands of man hours and many thousands of dollars in record retrieval and transportation costs. Thus, the DA. argues that such an undertaking would interfere with the constitutionally mandated duty to prosecute criminal violations. ADA. Andrieu testi?ed before the trial courtthat the ?les are arranged by defendant name and case number, and that there is no index that would show whether a DA. subpoena is contained within a ?le. Moreover, there is no separate ?le that contains all D.A. subpoenas issued by the of?ce, and no list of cases in which a D.A. subpoena was issued. Thus, to ?nd a DA. subpoena, theentire ?le would have to be manually searched. ADA. Pipes testi?ed that Mr. Maldonado?s request included approximately 8,000 to 9,000 cases, which would require about 9,000 man hours to review the ?les. He explained that ?rst the ?les would have to be located, as some closed ?les are stored offsite. Additionally, privileged and personal information contained in the ?les would have to be redacted before any documents could be turned over. A.D.A. Pipes opined that considering the volume of work, a number of attorneys would have to be pulled from their. regular duties and'be dedicated full-time to the task. He further explained that because of budget restrictions, have no support staff or administrative staff. We ?nd the facts of the present case to be distinguishable from Becket. In Becker, the plaintiff appealed the trial court?s judgment, which denied, in part, her request for public records pursuant to a petition for writ of mandamus ?led against the City of New Orleans. The request sought, in part, all documents generated as a result of any Public Integrity Bureau investigation conducted within the last ten years of any allegations that any member of the New Orleans Police Department . violated three separate rules of the New Orleans Police Department Operations Manual, including-but not limited to, all statements obtained, photographs taken, and reports generated in connection with this investigatiOn. In af?rming the trial court?s denial of the record?s request, we determined that the City demonstrated 10_ that segregating ten years of ?les (that were categorized by the of?cer?s name and .- not by the speci?c rule violation) was unreasonably burdensome. The DA. argues that the records request in the present case is even more burdensome than in Becker. Considering that Maldonado?s request involves a much shorter period of time (Jamey 1, 2016 to April 27, 2017), than the ten-year period sought in Becket, we disagree. In the reasons provided ??om the bench, the trial judge acknowledged that i: the records requests may very Well be a burden, but further recognized the responsibility of the D.A., as a public agency, to be accountable for the way it executes its duties. The trial judge concluded that the public records request for DA. subpoenas contained in closed and rejected ?les was not overly burdensome, ?nding that time period requested was not a substantial period of time We ?nd no error in the trial court?s ?nding. As the party seeking to prevent disclosure, it is the DA. ?5 statutory burden to prove that withholding the public records is justified. See La. R.S. 4431(3); La. R.S. 44:3503). Based on our comprehensive review of the record, we ?nd that the DA. did not meet this burden. Assignment of Error No. 2: Awarding Attorney Fees and Costs The November 22, 2017 judgment granted Mr. Maldonado?s request for attorney?s fees and costs under La. R.S. 44:35 (D), in an amount to be determined at a later hearing. We ?nd no error in that ruling. Regarding the issuance of attorney?s fees under the Public Records Law, La. R.S. provides: ?If the person seeking the right to inspect or to receive a copy of the public record prevails in his enforcement suit, the court shall award him reasonable attorney fees and other litigation costs. If such person prevails in 11 part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof.? (emphasis added). As we will discuss separately below, a plaintiff may also be entitled to actual damages andcivil penalties when the custodian acted arbitrarily or capriciously pursuant to La. R.S. 4435130). In this case, because we have decided that Mr. Maldonado had the right to inspect some of the documents requested, he has prevailed in part in his mandamus- action. Based on our review of the record before us, we ?nd no abuse of discretion in the trial court?s granting of Mr. Maldonado?s request for attorney fees under La. R.S. Mr. Maldonado ?5 Answer to the Appeal Mr. Maldonado ?led an answer to the appeal asking this Court to modify or reverse portions of the trial court?s judgment. He asserts in his answer that the trial court erred in: (1) not ordering production of DA. subpoenas contained in all open case ?les; and (2) failing to ?nd that the was arbitrary and capricious. Mr. I Maldonado also seeks an additional award of attorney?s fees and costs in defending this appeal. Exclusion of Open Case Files The trial court determined that the DA. subpoenas contained Within the open case files are exempt from production under the Louisiana Public Records? - Law, La. R.S. 44:3. We agree. La. R.S. states, in pertinent part: Nothing in this Chapter shall be construed to require disclosures of records, or the'inforrnation contained therein, held by the of?ces of the district attorneys which records are: (1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been ?nally adjudicated or otherwise settled 12 Clearly, the open case ?les requested by Mr. Maldonado represent cases wherein criminal litigation is pending. Accordingly, we ?nd that the uial court correctly ruled that the open ?les are exempt from production. Arbitrary and Capricious Mr. Maldonado ?nther argues in his answer to the appeal that the trial court erred in ?nding that the DA. was not arbitrary and capricious. We ?nd no merit in this assignment of error. Pursuant to La. R.S. If the court ?nds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by RS. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court ?nds that the custodian unreasonably or arbitrarily failed to respond to the request as required by RS. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give noti?cation. (emphasis added). It is well established that an award of civil penalties pursuant to La. RS. is discretionary with the trial judge, and is reviewed under an abuse? of?discretion standard. Innocence Project New Orleans v. New Orleans Police Dept, 2013-0921, p. 8 (La. App. 4 Cir. 11/6/13), 129 So.3d 668, 674 (citing On 12. Clarkson, 2003-1287, p. 4 (La. App. 4 Cir. 12/10/03), 863 So.2d 663, 666). ?The terms ?arbitrary and capricious? mean will?il and unreasoning action, absent consideration and in disregard of the facts and circumstances of the case.? Toups V. City ofShreveport, 2010-1559, p. 3, (La. 3/15/11), 60 So.3d 1215, 1217. ?However, when there is room for two opinions, an action is not arbitrary or capricious when exercised honestly and upon due consideration, even though it may be believed an erroneous conclusion has been reached.? Id. at pp. 3-4 (citing l3 Four States Realty Ca, Inc. V. City ofBaton Rouge, 309 So.2d 659, 664 (La. 1 974)). In his brief to this Court, Mr. Maldonado describes the actions as an I absolute failure and staunch refusal to act. The record does not support this assertion. To the contrary, the record demonstrates that the DA. timely responded to each records request, providing an explanation as to why the documents were not readily available, and the dif?culty involved in locating the subpoenas within the large volumes of case ?les. The DA. met with Mr. Maldonado?s attorney in order to resolve the matter. Email communications contained in the record also demonstrate an effort by the BA. to cooperate with Mr. Maldonado. Furthermore, the DA. turned over some D.A. subpoenas and made some entire ?les available to Maldonado that he chose not to review. Maldonado. acknowledged in his amended petition that he did net want to View entire ?les. Rather, he only wanted to be supplied with the DA. subpoenas. In sum, the record contains no evidence that the DA. acted unreasonably or wasarbitrary and capricious in handling Mr. Maldonado?s public records request. Thus, there was a reasonable basis for the trial court?s ruling on this issue. Attorney?s Fees for Answering the Appeal Mr. Maldonado seeks additional attorney?s fees for defending this appeal. It is well established in our jurisprudence that, An increase in attorney fees is usually awarded where a party who was awarded attorney fees by the trial court is forced to and successfully defends an appeal. The award of additional attorney fees is to keep the appellate judgment consistent with the underlying judgment. To determine the amount of attorney fees, factors that are considered include ?the skill exercised by the attorney and the time and work required on appeal.? 14 State of Louisiana, Dept. off/"ramp. Develop. v. Monte/ewe, 2011?1013, p. 34 (La. App. 5 Cir. 11/13/12), 106 So.3d 153, 174 (internal citations omitted); See also, th?t?beck v. Champagne, 2014-245, p. 22 (La. App. 3 Cir. 10/ 1/ 14); 149 So. 3d 372, 386 (citing McFadden v. Import One, Inc., 2010-952, p. 16 (La. App. 3 Cir. 2/9/11), 56 So.3d 1212, 1223). Mr. Maldonado has success?illy defended this appeal; and, therefore, he is entitled to additional attorney?s fees. However, we ?nd the record before us is insuf?cient to determine the appropriate amount of attorney?s fees for Maldonado?s attorneys? post?j udgment work on appeal. Accordingly, we remand to the trial court for a hearing on the issue of attorney?s fees for this appeal. CONCLUSION For the foregoing reasons, Mr. Maldonado?s motion to dismiss appeal is denied. Finding no merit in the assignments of error, we af?rm the November 22, 2017 judgment and remand to the trial court for a determination of additional attorney?s fees to which Mr. Maldonado is entitled for work performed on this appeal. All other relief requested in Mr. Maldonado?s answer to the appeal is denied. AFFIRMED, MOTION TO DISMISS APPEAL ANSWER TO APPEAL REMANDED 15 Of?ce Of The Clerk . Court of Appeal, Fourth Circuit State of Louisiana Justin I. Woods Mailing Address: Clerk of Court - 400 Royal Street 410 Royal Street Third Floor New Orleans, Louisiana JoAnn Veal 70130-2199 Chief Deputy Clerk of Court . A (504) 412-6001 FAX (504) 412?601 9 NOTICE OF JUDGMENT AND CERTIFICATE OF MAILING I CERTIFY THAT A COPY OF THE OPINION IN THE HAS BEEN MAILED ON OR DELIVERED THIS DAY 10I1012018 TO THETRIAL COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: - - JUSTIN I. WOODS CLERK OF COURT 2018-CA-0177 I David Fink Michael Finkelstein Scott G. Vincent THE LAW OFFICE OF BERNARD L. Joseph Marriott J. Edward McAuliffe, OHARBONNET, R, A PROFESSIONAL Scott L. Stemberg District Attomey?s Of?ce. Orleans Parish LAW CORPORATION STE RN BERG WHITE. LLC 619 South White Street 365 Canal Street 643 Magazine Street, Suite 402 New Orleans, LA 70119 Suite 1155. One Canal Place New Orleans, LA 70130- New Orleans, LA 70112- Willam Dieters ORLEANS DISTRICT ATTORNEY OFFICE 619 S. White Street New Orleans, LA 70119- .