One facet of Louisiana’s public records law is never enforced

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Rep. Les Farnum asks a question during the May 26, 2022, meeting of the House and Governmental Affairs Committee. (Greg LaRose/Louisiana Illuminator)

Officials in Louisiana will soon be free to disregard state public records law at no risk if Gov. Jeff Landry signs into law a bill that currently sits on his desk. One expert says it will change nothing because courts have never enforced that part of the law anyway.

House Bill 768, sponsored by Rep. Les Farnum, R-Sulphur, repeals a statute within the public records law that makes the records custodian of a government agency personally liable for unreasonably withholding records or failing to respond to a public records request.

Under current law, courts can consider custodian liability when a requester sues the government agency that withheld the records. The custodian can be forced to pay a fine of $100 per day and attorney fees of the person who was denied access to the records.

Farnum’s bill repeals that provision, stating that “no person shall be liable for any penalty … attorney fees and other costs of litigation assessed for failure to comply” with the law. Instead, the government body shall be responsible for such penalties.

Some lawmakers argued public records custodians have little authority in how to respond to requests and merely serve as liaisons between the person making the request and the public official who ultimately decides whether to provide or withhold a record.

During House floor debate on the bill in April, Farnum said it is unfair to hold custodians personally liable because they “are probably very low-paid employees just doing what they’re told to do.”

Current law says differently. Such low-level employees don’t fit the definition of “custodian,” and a government agency can choose whether and whom to designate as an official records custodian. At larger agencies, it is often a division head or staff attorney. Many smaller government offices don’t have a designated custodian. If that is the case, the law defines the custodian as the head of the agency or the official who has actual control over a public record.

Also, current law provides an exception that states a custodian shall not be held personally liable if they deny a records request on the advice of an attorney representing the agency.

Rather than providing a shield for low-paid employees just following orders, Farnum’s bill would likely protect the wallets of officials at the very top who issue those orders to withhold records from the public — shifting the entire financial penalty onto taxpayers.

Some lawmakers during the floor debate pointed out that without personal liability, government officials will have little reason to follow the law when it comes to public records. But according to one public records expert, that is pretty much the situation already in Louisiana.

Scott Sternberg, a First Amendment lawyer who represents members of the Louisiana Press Association in public records disputes, said the legislation is unlikely to make things worse than they already are because courts almost never enforce the custodian liability law.

Sternberg defended The Advocate reporter Andrea Gallo, who then-Attorney General Landry sued in 2021 for filing a public records request with his office. Many critics saw the move as an obvious, if not egregious, violation of the public records law. The judge ruled against Landry but denied the reporter’s claim for penalties under the statute that Farnum’s bill is repealing.

“That’s not [a bill] that I was particularly interested in because it never happens anyway,” Sternberg said in a text message.

Farnum’s legislation sailed through the Capitol with little scrutiny in a session that saw multiple bills that threatened to weaken or repeal state public records law, most spearheaded by the governor.

Sternberg focused more on a measure from Sen. Heather Cloud, R-Turkey Creek, that would have almost entirely negated the public records law, and a proposal by Rep. Michael Melerine, R-Shreveport, that would have exempted the governor from having to follow the public records law. Neither made it through the Legislature.

Also notable was a bill from Rep. Steven Jackson, D-Shreveport, that will allow local governments to hide economic development records from the public for up to two years. That proposal passed the Legislature and is also pending consideration by the governor.

Louisiana lawmakers have gradually chipped away at the state’s public records law, adopting hundreds of changes to revoke public access to a long list of government documents since it was enacted in 1940.

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