John Conrad Dauthier v. City of Baton Rouge, Parish of East Baton Rouge, Baton Police Department

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021CA1455
JOHN CONRAD DAUTHIER
VERSUS
CITY OF BATON ROUGE, PARISH OF EAST BATON ROUGE AND BATON
ROUGE POLICE DEPARTMENT
1
'JUN 1 4 2022
Judgment Rendered:_·_ _ _ __
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Appealed from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. C694023
The Honorable Trudy M. White, Judge Presiding
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Clifton J. Ivey, Jr. Counsel for Plaintiff/ Appellee
Baton Rouge, LA John Conrad Dauthier
Anderson 0. Dotson, III, Counsel for Defendant/Appellant
Parish Attorney City of Baton Rouge and Parish of East
David M. Lefeve, Baton Rouge
Assistant Parish Attorney
Baton Rouge, LA
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BEFORE: WHIPPLE, C.J, PENZATO, AND LANIER, JJ.
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LANIER,J.
The appellant, the City of Baton Rouge/Parish of East Baton Rouge (the
City/Parish), appeals a judgment of the Nineteenth Judicial District Court in favor
of the appellee, John Conrad Dauthier. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 29, 2019, Mr. Dauthier, who was employed by the Baton Rouge
Police Department (BRPD), submitted an online public records request to BRPD
via email. Mr. Dauthier initially requested the following items: the entire Internal
Affairs file relating to one particular police officer; the Internal Affairs summary of
the past 24-month history relating to another police officer; any Internal Affairs
documents entitled "Internal Affairs Accountability Form" completed by the
division commander since 2018; any Internal Affairs documents, and specifically
documents entitled "Internal Affairs Accountability Form" concernmg
'
investigations into a particular police officer in the past 24 months; and copies of
any policy, memorandum, custom, or practice explaining how Internal Affairs
investigators are trained. BRPD acknowledged receipt of the request via email,
and also stated that any records pertaining to ongoing criminal or administrative
investigations will not be disclosed.
On May 10, 2019, Mr. Dauthier's former counsel inquired as to the status of
the public records request, claiming that the return deadline on the request had
passed. BRPD responded to the request on May 15, 2019, advising that the
redaction process was ongoing, and that some of the requested records may not be
subject to disclosure. BRPD gave an expected time frame within which some of
the requested records could be disclosed.
Mr. Dauthier then reduced the number of requested documents in response
to clarification requests made by BRPD. On May 23, 2019, BRPD informed Mr.
Dauthier that it was in the process of redacting his requested documents, but that
2
its legal advisor, who was overseeing the records request, was leaving on a six-day
vacation and would advise him on the request's progress upon her return to work.
In an email dated June 3, 2019, BRPD informed Mr. Dauthier that the
redacted records that he requested were ready. After reviewing the records, Mr.
Dauthier responded to the email the following day, asserting his objections to the
redacted form of the records. Despite his objections, BRPD made no revisions to
the redacted material. Mr. Dauthier then filed a petition for injunction or,
alternatively, for writ of mandamus, and attorney fees pursuant to La. R.S. 44:35,
against the City/Parish and the BRPD. 1 Mr. Dauthier stated in his petition that, as
of the date of its filing, BRPD had not responded to his public records request in a
way that was in conformity with the law, and that the records he had received were
unlawfully redacted. Mr. Dauthier further alleged that the defendants were public
bodies under the definition of La. R.S. 44: 1, making them subject to public records
requests.
A hearing was held on March 15, 2021, and the trial court took the matter
under advisement. During that time, the trial court reviewed unredacted copies of
the subject documents in camera. The trial court rendered written reasons on May
7, 2021, and the City/Parish filed a motion for suspensive appeal on May 24,
2021. 2 The trial court signed a judgment on May 10, 2022, granting the writ of
mandamus and specifying the information that the City/Parish properly and
improperly redacted from the records. The trial court further awarded attorney fees
1
In the body of his petition, Mr. Dauthier names as defendant the East Baton Rouge Parish
Metropolitan Council, the governing body of the City of Baton Rouge and Parish of East Baton
Rouge. He further claims that the BRPD is an authority established by the Metropolitan Council,
which has authority, along with the Mayor-President, over the operations of the BRPD.
2
If an appeal is filed before the signing of the judgment, the subsequent signing of the judgment
cures any previously existing defect in the premature appeal. See Overmier v. Traylor, 4 75
So.2d 1094-95 (La. 1985) (per curiam); Chauvin v. Chauvin, 2010-1055 (La. App. 1 Cir.
10129110), 49 So.3d 565, 569, n. 2.
3
and costs in the amount of $2,500.00 to Mr. Dauthier, but declined to award civil
penalties. 3
ASSIGNMENTS OF ERROR
The City/Parish cites three assignments of error: 4
1. The trial court erred by finding that a police officer who is the subject of an
accountability form has no reasonable expectation of privacy.
2. The trial court erred by finding the redactions made by the City/Parish to
protect the identity of a police officer who is the subject of an accountability
form were improper.
3. The trial court erred in awarding attorney fees pursuant to La. R.S.
44:35(E)(l) based on finding the City/Parish's redactions were arbitrary and
capnc10us.
DISCUSSION
A writ of mandamus may be issued in all cases where the law provides no
relief by ordinary means or where the delay involved in obtaining ordinary relief
may cause injustice. See La. C.C.P. art. 3862. A writ of mandamus may be
directed to a public officer to compel the performance of a ministerial duty
required by law. See La. C.C.P. art. 3863. A "ministerial duty" is one in which no
element of discretion is left to the public officer, in other words, a simple, definite
duty, arising under conditions admitted or proved to exist, and imposed by law.
3
The original judgment on appeal was signed on July 6, 2021, but was defective in that it lacked
sufficient language stating the relief granted, requiring reference to an extrinsic document, and
was therefore not an appealable judgment. See Advanced Leveling & Concrete Solutions v.
Lathan Company. Inc, 2017-1250 (La. App. 1Cir.12/20/18), 268 So.3d 1044, 1046. On April
11, 2022, this court issued an interim order, remanding the matter for the limited purpose of
instructing the trial court to sign an amended judgment correcting the aforementioned
deficiencies. The trial court supplemented the appellate record with the amended judgment. We
find the amended judgment has only altered the phraseology of the judgment, not the substance,
and therefore maintain the appeal. See La. C.C.P. art. 1951; see also Frisard v. Autin, 98-2637
(La. App. I Cir. 12/28/99), 747 So.2d 813, 818, writ denied, 2000-0126 (La. 3/17/00), 756 So.2d
1145.
4
In his brief, Mr. Dauthier raises his own assignments of error concerning the lack of a civil
penalty award and the applicability of La. R.S. 40:2532 to the judgment. However, Mr. Dauthier
did not file an answer to the City/Parish's appeal, as required by La. C.C.P. art 2133(A). Further,
were we to consider Mr. Dauthier's brief as constituting an answer to the appeal, it would
nevertheless be untimely, as La. C.C.P. art. 2133(A) requires an answer to the appeal to be filed
within fifteen days from the later of the return day or the lodging of the record. The record was
lodged on November 23, 2021, and Mr. Dauthier filed his brief on January 7, 2022.
4
Lowther v. Town of Bastrop, 2020-01231 (La. 5/13/21), 320 So.3d 369, 371;
Construction Diva, L.L.C. v. New Orleans Aviation Board, 2016-0566 (La. App. 4
Cir. 12/14/16), 206 So.3d 1029, 1037, writ denied, 2017-0083 (La. 2/24/17), 216
So.3d 59. Additionally, a trial court's findings of fact in a mandamus proceeding
are subject to a manifest error standard of review. Turner v. East Baton Rouge
Parish School Board, 2017-1769 (La. App. 1 Cir. 6/4/18), 252 So.3d 990, 993, writ
denied, 2018-1127 (La. 10/15/18), 253 So.3d 1299; St. Bernard Port, Harbor and
Terminal District v. Guy Hopkins Construction Co., Inc., 2016-0907 (La. App. 4
Cir. 4/5/17), 220 So.3d 6, 10, writ denied, 2017-0746 (La. 9/15/17), 225 So.3d
1088.
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. Krielow v. Louisiana State University Board of Supervisors,
2019-0176 (La. App. 1 Cir. 11/15/15), 290 So.3d 1194, 1201. Because the right of
access to public records is fundamental, access to public records may be denied
only when the law specifically and unequivocally denies access. 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(8)(3). As with Article
XII, Section 3 of the Louisiana Constitution5, the Louisiana Public Records Law
should be construed liberally in favor of free and unrestricted access to public
documents. Krielow, 290 So.3d at 1201.
Any person of the age of majority may inspect, copy, or reproduce any
public record, except when otherwise specifically provided by law. La. R.S.
44:3 l(B)(l). It was therefore the City/Parish's burden to prove that it could legally
5"No person shall be denied the right to observe the deliberations of public bodies and examine
public documents, except in cases established by law."
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redact the requested documents in the manner it had chosen. At the hearing, the
sole witness called was Deputy Chief Myron Daniels of BRPD, who was the
commander of Internal Affairs when Mr. Dauthier made his public records request.
He testified that Internal Affairs accountability forms are Internal Affairs records,
which are kept at the Office of Internal Affairs. Deputy Chief Daniels was
ultimately responsible for those records. However, Deputy Chief Daniels testified
that he did not participate in the redaction process, and never advised how the
documents should be redacted.
Admitted as exhibits were the email exchanges between Mr. Dauthier and
BRPD, as well as a redacted copy of the requested records. The requested records
consist of documents titled "Internal Affairs Accountability Form," a BRPD letter
for disciplinary action, emails, computer searches, and a complaint accountability
form. In all of these documents, nearly every pertinent name and date have been
redacted to where the documents provide little to no useful information.
In an email dated April 30, 2019, sent by BRPD to Mr. Dauthier, BRPD
advised that "[t]o the extent the records pertain to an ongoing criminal or
administrative investigation/prosecution, the relevant records will not be subject to
disclosure pursuant to [La. R.S. 44:3]." That statute exempts from the Public
Records Law a wide range of items, but the statute does not specifically provide
for Internal Affairs accountability forms. The email dated June 3, 2019 from
BRPD to Mr. Dauthier references La. R.S. 40:2532 and City of Baton
Rouge/Parish of East Baton Rouge v. Capital City Press, L.L.C., 2007-1088 (La.
App. 1 Cir. 10/10/08), 4 So.3d 807 as bases for the redactions.
Louisiana Revised Statutes 40:2532 states:
No person, agency, or department shall release to the news media,
press or any other public information agency, a law enforcement
officer's home address, photograph, or any information that may be
deemed otherwise confidential, without the express written consent of
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the law enforcement officer, with respect to an investigation of the
law enforcement officer.
Mr. Dauthier, who was employed as a BRPD officer at the time of the public
records request, did not represent any news media, press, or public information
agency. Therefore, La. R.S. 40:2532 is not a legal basis for BRPD's redaction of
the requested public records.
The Capital City Press case states that "[ w]hen a request for public records
is at issue, the custodian or the individual claiming the privacy right must prove
that there is a reasonable expectation of privacy against disclosure of the
information to a person entitled to access to the public information. If, and only if,
a reasonable expectation of privacy is found, the court must weigh or balance the
public records disclosure interest against the privacy interest." Capital City Press,
4 So.3d at 819. That expectation of privacy must not only be an actual or
subjective expectation of privacy, but also one which society at large would
recognize as being reasonable. Id.Capital City Press has already made the determination that there is no
blanket exemption of Internal Affairs documents from the Public Records Law.
Id., at 819. The legislature could have included such an express exemption in the
Public Records Act but has failed to do so. Id. What Capital City Press has not
answered is whether Internal Affairs accountability forms are exempt from
disclosure. From the evidence presented, we find that there is no difference
between BRPD's accountability forms and any other Internal Affairs document in
its custody. Most notably, Deputy Chief Daniels testified that accountability forms
were maintained by the same office that maintained all other Internal Affairs
documents. Accountability forms are further linked to Internal Affairs because
"Internal Affairs" precedes "Accountability Form" in the heading of those
documents. The other requested documents, which were not accountability forms,
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were still under the custody and control ofBRPD Internal Affairs and therefore not
exempt from disclosure. Id., at 822. BRPD has failed to carry its burden of
proving that an exemption from disclosure of the requested public records existed,
and the trial court was not manifestly erroneous in granting the writ of mandamus.
Once a record requester prevails in a suit under the Louisiana Public
Records Law, an award of reasonable attorney fees is mandatory. Lowe v. Parish
of St. Tammany, 2017-0783 (La. App. 1Cir.1/23/18), 241So.3d1035, 1038-39.
Although the City!Parish assigns as error the trial court's award of attorney fees
pursuant to La. R.S. 44:35(E)(l )6 , the pertinent section of that statute is La. R.S.
44:35(D)(l), which states that if the requesting person prevails in his writ of
mandamus against the public body and/or records custodian, he shall be awarded
reasonable attorney fees and other costs of litigation.
Factors to be taken into consideration in determining the reasonableness of
attorney fees include: ( 1) the ultimate result obtained; (2) the responsibility
incurred; (3) the importance of the litigation; (4) the amount of money involved;
(5) the extent and character of the work performed; (6) the legal knowledge,
attainment, and skill of the attorneys; (7) the number of appearances made; (8) the
intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the
court's own knowledge. Capital City Press v. Board of Sup 'rs of Louisiana State
University, 2001-1692 (La. App. I Cir. 6/21/02), 822 So.2d 728, 731. The breadth
of Mr. Dauthier's records request was not large. It did not appear that such a
request and resulting suit would have required a significant amount of money to
litigate. As evidenced by the record, Mr. Dauthier's total legal work included a
6 Louisiana Revised Statutes 44:35(E)(l) relates to the discretionary award of damages and civil
penalties when the trial court finds the record custodian acted arbitrarily or capriciously in
withholding the requested records. Although the trial court found the defendants acted arbitrarily
and capriciously in tendering documents that were unlawfully redacted, the trial court declined to
award damages and civil penalties. As such, it is unnecessary for this court to review whether
the defendants were in fact arbitrary or capricious in their actions, and the issue of civil penalties
has not been properly brought before this court.
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petition, two pre-trial pleadings, one court appearance, and a post-trial
memorandum, spanning only a few months. Based on the above factors, we find
the trial court's award of attorney fees to Mr. Dauthier in the amount of $2,500.00
to be reasonable.7
DECREE
The judgment of the Nineteenth Judicial District in favor of the appellee,
John Conrad Dauthier, is affirmed. All costs in connection to this appeal are
assessed to the appellant, the City of Baton Rouge/Parish of East Baton Rouge, in
the amount of$999.00.
AFFIRMED.
7 Mr. Dauthier has not requested attorney fees in connection with this appeal.
9