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Date: 01-27-2020
Case Style:
LAURA BIXBY Vs. COLLIN ARNOLD
Case Number: 2019-CA-0477
Judge: Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Dale N. Atkins
Court: COURT OF APPEAL
FOURTH CIRCUIT
STATE OF LOUISIANA
Plaintiff's Attorney: Isaka R. Williams
ASSISTANT CITY ATTORNEY
Megan A. Haynes
ASSISTANT CITY ATTORNEY
Corwin St. Raymond
DEPUTY CITY ATTORNEY
Churita H. Hansell
CHIEF DEPUTY CITY ATTORNEY
Donesia D. Turner
SENIOR CHIEF DEPUTY CITY ATTORNEY
Defendant's Attorney:
Description:
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On August 9, 2018, Ms. Bixby, a resident of New Orleans and a staff
attorney for the Orleans Public Defenders, made a formal public records request to
NOHSEP requesting production of the following records:
(1) Any maps or maps which the City maintains showing the location of all PUBLICLY VISIBLE (in other words, red and blue lights and the NOPD logo) real time crime cameras, not including traffic/red light/school zone cameras, at the present date; (2) Any policies governing the keeping of records of locations of such cameras of past dates; and
(3) Records or policies regarding the number and type of staff employed at the Real Time Crime Center.
On August 14, 2018, the New Orleans City Attorney’s Office (the “City
Attorney’s Office”) responded on behalf of Mr. Arnold and NOHSEP. The City
Attorney’s Office denied Ms. Bixby’s first and second requests. However, it
provided records responsive to her third request. In denying Ms. Bixby’s first
request, the City Attorney’s Office responded as follows:
Records responsive to your first request regarding the location of the City’s crime cameras are exempt from disclosure under the Public Records Law because they are records regarding investigative technical equipment and physical security information created in the prevention of terrorist-related activity.
The City Attorney’s Office cited La. R.S. 44:3(A)(3) as the statutory basis for the
claimed exemption.
As to the denial of Ms. Bixby’s second request, the City Attorney’s Office
responded that:
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The Office of Homeland Security and Emergency Preparedness does not have records responsive to your second request regarding policies governing keeping records of locations of cameras.
In response to the City Attorney’s Office partial denial of her public records
request, Ms. Bixby filed, on February 20, 2019, a Petition for Writ of Mandamus
pursuant to the Louisiana Public Records Law (the “Petition”) requesting that Mr.
Arnold produce the maps sought in the first request or be ordered to appear to
show cause why he should not be “ordered to do so.” Ms. Bixby also requested an
award for attorney’s fees and costs as the prevailing party pursuant to La. R.S.
44:35(A). Mr. Arnold, on March 6, 2019, filed an exception of no cause of action
stating that the responsive “public” documents were produced and provided to Ms.
Bixby. Further, Mr. Arnold responded he “did not refuse to perform his duties as
custodian of the records for [NOHSEP];” therefore, Ms. Bixby was not entitled to
attorney’s fees or costs because he did not act arbitrarily or capriciously in
response to her public records request.
The matter came for a contradictory hearing before the trial court on March
14, 2019.2 Before the hearing commenced, the trial court ordered the parties to
submit post-hearing memoranda on the issues presented at the hearing. On May 3,
2019, the trial court rendered its judgment in which it:
(1) Granted Ms. Bixby’s Writ of Mandamus; and
(2) Awarded Ms. Bixby attorney’s fees and costs.
2 The original hearing date on the Petition was scheduled for February 28, 2019. However, the record reflects that Mr. Arnold was not served with the Petition until February 27, 2019. On Mr. Arnold’s motion, the trial court granted a continuance and set the hearing for March 14, 2019.
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The trial court also ordered Mr. Arnold to produce the following public records:
Any map or maps which the City maintains showing the location of all publicly visible real time cameras, not including traffic/red light/school zone cameras, at present date.
It is from this judgment that Mr. Arnold appeals.
DISCUSSION AND ANALYSIS
Mr. Arnold argues that the trial court erred in granting the writ of mandamus
because the records sought are exempt from disclosure. Mr. Arnold also claims the
trial court erred in ruling that NOHSEP is not an intelligence agency. Further, Mr.
Arnold argues that the trial court erred in mandating the production of the maps
because disclosure of the requested maps is unduly burdensome and overly broad.
Lastly, Mr. Arnold claims the trial court erred in granting attorney’s fees and costs
to Ms. Bixby.
Overview of the Public Records Law
We begin our discussion with an overview of the Public Records Law. “The
right of access to public records is fundamental.” Elliot v. Taylor, 614 So.2d 126,
128 (La. App. 4th Cir. 1993). Louisiana Constitution Article XII, § 3 provides 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.
The Louisiana legislature has codified this right in the Public Records Act,
La. R.S. 44:1, et. seq. Specifically, La. R.S. 44:1(A)(2)(a) defines a “public record”
as follows:
All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics,
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including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are “public records”, except as otherwise provided in this Chapter or the Constitution of Louisiana.
(Emphasis added).
The right of access to public records is a fundamental right guaranteed by
the Louisiana Constitution Art. XII, § 3. Because it is a fundamental right, the
jurisprudence has held that any request for a public record “must be construed
liberally in favor of free and unrestricted access to the records, and that access can
be denied only when the law, specifically and unequivocally, provides otherwise.”
Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La. 1984). Further,
“[w]henever 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.” Id.
“The burden of proving that a public record is not subject to inspection, copying,
or reproduction shall rest with the custodian.” La. R.S. 44:31(B)(3).
“Generally, an appellate court reviews a trial court’s judgment on a writ of
mandamus under an abuse of discretion standard.” Commodore v. City of New
Orleans, 2019-0127, p. 9 (La. App. 4 Cir. 6/20/19), 275 So.3d 457, 465 (citing
Lewis v. Morrell, 2016-1055, p. 5 (La. App. 4 Cir. 4/5/17), 215 So.3d 737, 740).
“Also, a trial court’s findings of fact in a mandamus proceeding are subject to a
manifest error standard of review.” Id. (citing St. Bernard Port, Harbor &
Terminal Dist. v. Guy Hopkins Constr. Co., 2016-0907, p. 4 (La. App. 4 Cir.
6
4/5/17), 220 So.3d 6, 10). “However, questions of law, such as the proper
interpretation of a statute, are reviewed by appellate courts under the de novo
standard of review, and the appellate court is not required to give deference to the
lower court in interpreting a statute.” Id., 2019-0127, p. 9, 275 So.3d at 465-66
(citing Carver v. Louisiana Dep't of Pub. Safety, 2017-1340, p. 4 (La. 1/30/18),
239 So.3d 226, 230; St. Bernard Port, Harbor & Terminal Dist., 2016-0907, p. 4,
220 So.3d at 10).
Ms. Bixby filed a public records request seeking “any maps or maps which
the City maintains showing the location of all PUBLICLY VISIBLE…real time
crime cameras.” The record reflects that, in 2017, NOHSEP established the RTCC
which currently has four hundred (400) cameras placed in various neighborhoods
across the metropolitan area of New Orleans. The cameras are located in areas that
have been identified as target crime areas. Accordingly, Ms. Bixby filed a public
records request to NOHSEP requesting production of the maps showing the
location of these cameras.
La. R.S. 44:1(A)(2)(a) establishes that “all” maps maintained “under the
authority of constitution and laws of this state” are public records.
As stated, the record reflects that the real time cameras are maintained by
NOHSEP, a parish office established to be responsible for the homeland security
and emergency preparedness for Orleans Parish. See La. R.S. 29:729. Further, Mr.
Arnold, the custodian of the records for NOHSEP, does not dispute that the
requested maps are public records as defined by La. R.S. 44:1(A)(2)(a). Thus, we
find the maps the trial court ordered for production by Mr. Arnold are public
records pursuant to La. R.S. 44:1(A)(2)(a).
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Issues Number 1 and 2 - La. R.S. 44:3(A)(3) Exemption of Records of Investigative Agencies
Now, we address the central issues of Mr. Arnold’s argument. He argues that
NOHSEP is an intelligence agency pursuant to La. R.S. 44:3(A) and that the map
or maps are exempt from disclosure pursuant to La. R.S. 44:3(A)(3).
La. R.S. 44:3(A) provides that:
Nothing in this Chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of the attorney general, district attorneys, sheriffs, police departments, Department of Public Safety and Corrections, marshals, investigators, public health investigators, correctional agencies, communications districts, intelligence agencies, Council on Peace Officer Standards and Training, Louisiana Commission on Law Enforcement and Administration of Criminal Justice, or publicly owned water districts of the state…
(Emphasis added).
Not all records of the entities enumerated in La. R.S. 44:3(A) are exempt.
Only the records containing specific information, as defined in La. R.S.
44:3(A)(3), are exempt.
La. R.S. 44:3(A)(3) provides that:
Records containing security procedures, investigative training information or aids, investigative techniques, investigative technical equipment or instructions on the use thereof, criminal intelligence information pertaining to terrorist-related activity, or threat or vulnerability assessments collected or obtained in the prevention of terrorist-related activity, including but not limited to physical security information, proprietary information, operational plans, and the analysis of such information, or internal security information…
Thus, to claim the public records exemption, Mr. Arnold must prove (1) that
NOHSEP is an intelligence agency pursuant to La. R.S. 44:3(A); and (2) that the
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maps contain the type of information exempt from disclosure pursuant to La. R.S.
44:3(A)(3).
Mr. Arnold argues that NOHSEP is an intelligence agency which functions
as an investigatory agency for several departments in the City, including the New
Orleans Police Department (“NOPD”). He asserts that NOHSEP’s mission and job
responsibilities illustrate that it serves these departments as an intelligence agency.
Therefore, Mr. Arnold maintains that NOHSEP qualifies as an intelligence agency
pursuant to La. R.S. 44:3(A) and has a right to assert the statutory exemption.
Ms. Bixby counters that NOHSEP is not an intelligence agency. She argues
that NOHSEP is an office whose mission is “emergency planning” and
“preparedness.” Further, she argues that the specific government entities listed in
La. R.S. 44:3(A) primarily function as law enforcement or criminal investigation
entities. Moreover, Ms. Bixby contends that the context of “intelligence agency,”
as listed in the La. R.S. 44:3(A), should be interpreted synonymously with “police
department,” or “investigator,” or “attorney general.” Lastly, Ms. Bixby contends
NOHSEP does not have any law enforcement or criminal investigation functions
and does not serve as an investigatory agency.
“The privileges granted under La. R.S. 44:3(A) have been strictly
construed.” Skamangas v. Stockton, 37,996, p. 7 (La. App. 2 Cir. 3/5/04), 867
So.2d 1009, 1014. As such, to determine if NOHSEP is an intelligence agency, we
must examine the term “intelligence agency” as listed in La. R.S. 44:3(A).
“Intelligence agency” is not explicitly defined in the statute. “Where the statute
does not define a term, we assume that it retains its common meaning.” Larson v.
XYZ Ins. Co., 2015-0704, p. 12 (La. App. 4 Cir. 3/23/16), 192 So.3d 181, 188
(citing Vogt v. Board of Levee Com'rs of Orleans Levee Dist., 1995-1187, p. 10
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(La. App. 4 Cir. 9/4/96), 680 So.2d 149, 155). Merriam-Webster’s Collegiate
Dictionary, (11th ed., 2003) defines “intelligence,” in pertinent part, as “…b:
information concerning an enemy or possible enemy or an area; also: an agency
engaged in obtaining such information…” (Emphasis in original). Further,
Merriam-Webster’s Collegiate Dictionary, (11th ed., 2003) defines “agency,” in
pertinent part, as “…5: an administrative division (as of a government)…”
(Emphasis in original). Pursuant to Merriam-Webster’s Collegiate Dictionary’s
definition of “agency,” NOHSEP is an “agency” as it is a governmental department
within the City. However, pursuant to Merriam-Webster’s Collegiate Dictionary,
“intelligence,” as it relates to an agency, requires one that is engaged in collecting
information concerning “an enemy or possible enemy or an area.”
In support of his argument that NOHSEP is an intelligence agency, Mr.
Arnold cites La. R.S. 29:729, which codifies the functions of NOHSEP.
Specifically, Mr. Arnold cites La. R.S. 29:729(B)(6), which provides:
B. The parish office of homeland security and emergency preparedness shall prepare and maintain an all hazards emergency operations plan and keep it current, which plan may include any of the following:
***
(6) Assistance to local officials in designing local homeland security and emergency action plans.
Relying on La. R.S. 29:729(B)(6), Mr. Arnold argues that NOHSEP has a “nexus”
with NOPD, explaining that the cameras supplied by RTCC, which it operates,
allow technicians to provide NOPD personnel with live updates regarding
occurrences on the scene of a crime. Mr. Arnold also argues that RTCC similarly
aids in the prevention of terrorism. Thus, he asserts that these functions
demonstrate that NOHSEP is an intelligence agency. We disagree.
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La. R.S. 29:729 addresses the duties and functions of NOHSEP.
Specifically, La. R.S. 29:729(A) provides that “[t]he parish office of homeland
security and emergency preparedness…shall be responsible for homeland security
and emergency preparedness in the parish…” La. R.S. 29:729 does not establish
that NOHSEP shall be responsible for intelligence, or intelligence gathering on
behalf of New Orleans, or investigatory duties. Further, Mr. Arnold claims
NOHSEP is a “subsidiary of sorts” of the federal Department of Homeland
Security, which means that NOHSEP is an intelligence agency. This argument is
without merit. The federal Department of Homeland Security is not itself an
intelligence agency. The Office of Intelligence and Analysis, within the
Department of Homeland Security, is an intelligence agency. In addition to the
Office of Intelligence and Analysis, there are sixteen (16) state agencies considered
part of the intelligence community.3 NOHSEP has several components: none of
these components are focused on intelligence gathering.4
The trial court did not find that NOHSEP is an investigatory entity or law
enforcement agency, nor did it find that it established that the publicly-visible
cameras aid in the prevention of terrorism. Likewise, the record does not reflect
that Mr. Arnold sufficiently presented evidence that NOHSEP is an investigatory
agency.
3 The other agencies include the Office of the Director of National Intelligence, the Defense Intelligence Agency, the State Department Bureau of Intelligence and Research, the Homeland Security Department’s Office of Intelligence and Analysis, the Drug Enforcement Administration’s Office of National Security Intelligence, the Treasury Department’s Office of Intelligence and Analysis, the Energy Department’s Office of Intelligence and Counterintelligence, the National Geospatial-Intelligence Agency, the National Reconnaissance Office; Air Force Intelligence, Surveillance and Reconnaissance; Army Military Intelligence; Office of Naval Intelligence; Marine Corps Intelligence; and Coast Guard Intelligence. Nina Agrawal, There’s More Than the CIA and FBI: The 17 Agencies That Make Up the Intelligence Community, L.A. Times (Jan. 17, 2017), https://www.latimes.com/nation/la-na-17-intelligenceagencies-20170112- story.html.
4 See Homeland Security - City of New Orleans, https://www.nola.gov/homeland- security.
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Additionally, Mr. Arnold contends that RTCC, which NOHSEP operates, is
an intelligence agency because RTCC utilizes investigatory equipment. The public
website, for RTCC, provides that it “…leverages technology to provide critical
information to first responders in the field and to assist with investigations of
criminal activity or quality of life concerns.”5 (Emphasis added). Based upon this
description of RTCC, it is an aid to NOPD and other emergency departments in the
City, not an intelligence agency engaged in the collection of intelligence
information of “an enemy.” The record shows that NOHSEP is not an intelligence
agency, nor does it have any investigatory or law enforcement functions.
Additionally, Mr. Arnold did not prove that RTCC is an investigatory agency and
that the publicly-visible cameras aid in the prevention of terrorism.
Therefore, the trial court did not err in finding that NOHSEP was not an
intelligence agency. Consequently, pursuant to La. R.S. 44:3(A)(3), NOHSEP
cannot assert the disclosure exemption as it relates to the map or maps. Thus, we
further find the trial court did not err in ordering the production of the map or maps
requested by Ms. Bixby.
Issue Number 3- Writ of Mandamus
Having determined that the maps requested by Ms. Bixby are public records
and are not exempt, this Court now addresses the use of a mandamus proceeding to
compel production of the maps.
La. C.C.P. art. 3863 provides:
A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor.
5 See https://www.nola.gov/homeland-security/real-time-crime-center/.
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“That a writ of mandamus is the proper procedural means by which to
require a public officer to produce public records (unless an exception applies) is
evident both from the Public Records Law and case law.” Hatcher v. Rouse, 2016
0666, p. 6 (La. App. 4 Cir. 2/1/17), 211 So.3d 431, 434. The Public Records Law
provides for its own mandamus remedy as set forth in La. R.S. 44:35(A), which
provides:
Any person who has been denied the right to inspect, copy, 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 office of the custodian is located.
(Emphasis added).
The jurisprudence establishes there are six requirements that must be met to
invoke the mandamus remedy under the Public Records Law. Lewis v. Morrell,
2016-1055, p. 7 (La. App. 4 Cir. 4/5/17), 215 So.3d 737, 742.
The first requirement is that a request must be made. Id. La. R.S. 44:32(A)
provides, in pertinent part, that, “[t]he custodian shall present any public record to
any person of the age of majority who so requests.” (Emphasis in original).
“Inherent in the public records law is the requirement that a person seeking public
records actually make a request to the custodian of the records he seeks…[T]he
13
initial step is that ‘[a] request for access to a public record must be made to the
custodian of the record.’” Lewis, 2016-1055, p. 8, 215 So.3d at 742 (internal
citation omitted). “A written or electronically submitted request is necessary for
subsequent legal action in the event the custodian denies the request.” Id. Ms.
Bixby made a written public records request to Mr. Arnold seeking records in the
custody of NOHSEP. The record reflects that Mr. Arnold is the custodian of the
records for NOHSEP. Thus, the first requirement is satisfied.
The second requirement is the requestor must be a “person.” Lewis, 2016
1055, p. 8, 215 So.3d at 742. La. R.S. 44:31 sets forth that “any person of the age
of majority” can make a public records request. Id.; See also La. R.S. 44:31. The
record does not reflect that Ms. Bixby is a juridical entity or a minor. Ms. Bixby is
a person of the age of majority. The second requirement is satisfied.
The third requirement is that the request must be made to a “custodian.”
Lewis, 2016-1055, p. 9, 215 So.3d at 743. “Custodian” is defined as “the public
official or head of any public body having custody or control of a public record, or
a representative specifically authorized by him to respond to requests to inspect
any such public records.” Id. (citing La. R.S. 44:1A(3)). The record reflects that
Mr. Arnold is the custodian of records for NOHSEP. The third requirement is
satisfied.
The fourth element requires that the document must be a “public record.” Id.
“Public record” is a term that is broadly defined. Id. As discussed above, the maps
at issue are public records as defined by La. R.S. 44:1(A)(2)(a). The fourth
requirement is met.
The fifth requirement is that the document requested must exist. Id., 2016
1055, p. 10, 257 So.3d at 743.
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In response to the fifth requirement, Mr. Arnold invokes two arguments.
First, he argues that the production of the maps is unduly burdensome and overly
broad. Ms. Bixby’s request is limited to the location of all publicly-visible real
time cameras. The record shows that there are four hundred (400) locations. Ms.
Bixby’s request is not overly broad, nor has Mr. Arnold demonstrated it is unduly
burdensome to produce the records.
Second, Mr. Arnold argues, for the first time on appeal, that the maps
requested by Ms. Bixby do not exist. “An appellate court generally finds it
inappropriate to consider an issue raised for the first time on appeal when that issue
was not pled, urged, or addressed in the court below.” Crosby v. Sahuque Realty
Company, Inc., 2017-0424, p. 7 (La. App. 4 Cir. 12/28/17), 234 So.3d 1190, 1196
(citing Jones v. Dep't of Police, 11-0571, p. 8 (La. App. 4 Cir. 8/24/11), 72 So.3d
467, 472). The record reflects that Mr. Arnold did not raise the issue as to whether
or not the map or maps existed before the trial court. Thus, it is not appropriate for
this Court to consider this issue. We find the fifth requirement is satisfied.
The sixth requirement is that the custodian must have failed to respond to the
request. Lewis, 2016-1055, p. 10, 215 So.3d at 743. Mr. Arnold declined to
produce the maps requested by Ms. Bixby in her public records request asserting
that NOHSEP was an intelligence agency and that the requested records were
exempt from disclosure pursuant to La. R.S. 44:3(A)(3). “Should the custodian
refuse to allow access to the public records, the custodian must defend his action in
a contradictory hearing.” Id., 2016-1055, p. 10, 215 So.3d at 744. A contradictory
hearing was held in the trial court. At the close of the hearing, the trial court
permitted the parties to file post-hearing memoranda. Thereafter, the trial court
granted the writ of mandamus in favor of Ms. Bixby finding that NOHSEP was not
15
an intelligence agency as defined by La. R.S. 44:3(A). The trial court also
determined that the requested map or maps were public records and ordered the
production of the map or maps. Similarly, we find that NOHSEP is not an
intelligence agency as defined by La. R.S. 44:3(A), nor does NOHSEP have the
right to assert the exemption, pursuant to La. R.S. 44:3(A)(3) because the map or
maps are public records. As such, Mr. Arnold has failed to respond to Ms. Bixby’s
request. Thus, the sixth requirement is satisfied. All requirements are met to
invoke the mandamus remedy under the Public Records Law.
Issue Number 4- Granting of Attorney’s Fees and Costs
Lastly, Mr. Arnold argues that the trial court erred in awarding Ms. Bixby
attorney’s fees and costs. Pursuant to La. R.S. 44:35(A), a party that has been
denied the right to inspect records pursuant to a public records request “may
institute proceedings for the issuance of a writ of mandamus … relief,
together with attorney fees, costs …” (Emphasis added). Regarding the granting
of the request for attorney’s fees and costs under the Public Records Law, La. R.S.
44:35(D)(1) provides:
If a person seeking the right to inspect, copy, or reproduce a record or to receive or obtain a copy or reproduction of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof.
(Emphasis added).
Ms. Bixby prevailed on her writ of mandamus. As the prevailing party, the
trial court was mandated to award attorney’s fees and costs to Ms. Bixby.
For these reasons, we find that the trial court did not err in granting Ms.
Bixby’s writ of mandamus and awarding Ms. Bixby attorney’s fees and costs.
Outcome: For the foregoing reasons, we affirm the trial court’s judgment of May 3,
2019, granting Ms. Bixby’s writ of mandamus, ordering Mr. Arnold to produce the
maps requested, and awarding Ms. Bixby attorney’s fees and costs.
Plaintiff's Experts:
Defendant's Experts:
Comments: