Louisiana officials will soon be free to safely ignore the state’s public records law if Gov. Jeff Landry signs a bill currently on his desk into law. One expert says it won’t change anything because courts have never enforced that part of the law anyway.
House Bill 768, sponsored by Rep. Les Farnum (R-Sulfur), repeals a statute within public records law that makes a government agency’s records custodian personally responsible for retaining records unjustifiably 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 retained the records. The custodian may be required to pay a fine of $100 per day and attorney fees for 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 assessed litigation costs for failure to comply” with the law. Instead, the government agency will be responsible for such sanctions.
Some lawmakers argued that public records custodians have little authority over how to respond to requests and simply serve as liaisons between the person making the request and the public official who ultimately decides whether to provide or withhold a record.
During debate on the bill in the House of Representatives in April, Farnum said it’s unfair to hold custodians personally responsible because “they’re probably very low-paid employees who just do what they’re told to do.”
The current law says the opposite. These low-level employees do not fit the definition of “custodian,” and a government agency can choose whether and who to designate as the official custodian of records. In larger agencies, this is usually a division head or a staff attorney. Many smaller government offices do not have a designated custodian. If that is the case, the law defines the custodian as the head of the agency or official who has actual control over a public record.
Additionally, current law provides an exception that states that a custodian will not be personally liable if it denies a records request on the advice of an attorney representing the agency.
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Instead of providing a shield to low-paid employees who simply follow orders, Farnum’s bill would likely shield the wallets of the high-level officials who issue those orders from withholding records from the public, shifting the entire financial penalty to the taxpayers.
Some lawmakers during the debate noted that without personal liability, government officials will have little reason to follow the law when it comes to public records. But according to a public records expert, that’s the situation that already exists in Louisiana.
Scott Sternberg, a First Amendment attorney 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 rarely enforce the law. custodian liability law.
Sternberg defended Advocate reporter Andrea Gallo, who was sued by then-Attorney General Landry 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. Although the judge ruled against Landry in the main part of the case, he still denied the reporter’s claim of sanctions under the statute that Farnum’s bill is repealing.
“That’s not (a bill) I was particularly interested in because it never happens anyway,” Sternberg said in a text message.
Farnum’s legislation passed the Capitol with little scrutiny in a session that saw multiple bills threatening to weaken or repeal the state’s public records law, most spearheaded by the governor.
Sternberg focused more on a measure by Sen. Heather Cloud, R-Turkey Creek, that would have almost completely 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 passed through the Legislature.
Also notable was a bill from Rep. Steven Jackson, D-Shreveport, that would allow local governments to hide economic development records from the public for up to two years. That proposal was approved by 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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