BATON ROUGE, La (BRPROUD) – Lawmakers took up a bill that would change who takes on the burden of attorney fees in public record cases. But the language of the bill has raised concerns of it potentially limiting access to public records.
When a public records request is denied due to privacy reasons, people can take it to court to have a judge decide, and then that judge will decide who pays the attorney’s fees based on the outcome.
In the discussion on Wednesday, people labeled the proposed changes as a cooling effect for people who may want to file public records requests.
When a law enforcement agency is told they have to release a video that is public record in court, they have to pay the fees. The bill would put the fees on the filer even if they win the case if the judge determines their initial denial was reasonable.
The Jefferson Parish Sheriff said the custodian in charge should have more of an opportunity to review the contents of videos for privacy reasons and leave the decision up to a judge. This would not apply to footage related to a court case such as an officer involved shooting. Those records are exempt until the investigation has been concluded. He shared concern of some of the things officers encounter in the field and what a body camera could pick up, even though his parish does not have body cameras.
“If the judge rules against me and says I think that’s reasonable you can redact this or whatever the case may be and turn it over, I’ve got to pay that other party’s attorney’s fees,” Sheriff Joseph P. Lopinto said. “I’m trying to look at ways to lower my liability on the sheriff’s office to make sure I can afford the benefits that are there for cameras at the end of the day.”
Some attorneys spoke against the bill saying that some people who need the public records may not have the funds to pay the court fees even if they believe they can win they could still be penalized. The language of the bill also concerned them because it could allow the custodian to defer the responsibility of providing the records to the courts whenever they potentially see a privacy issue which could slow down the process and put the fees on anyone who may file a request.
“Re-writing 4435 would absolutely destroy public records litigations in the state. People will not file public records lawsuits if they don’t have some guarantee of getting their court costs back,” said Scott Sternberg, general counsel to the Louisiana Press Association.
Sternberg was part of a body camera commission that came up with guidelines of what is public record in those videos to protect some privacy. He said the commission was not consulted on the bill and asked the committee to hold off on advancing on the bill so there could be more discussion on the language.
There was some confusion on the bill as the sheriff repeatedly mentioned keeping public records with private information from “third parties” misusing the records. But the law does not allow custodians to ask for the purpose of the request. The bill was emphasized to only focus on the fees and not restricting records.
“I understand the deference for agencies and custodians to err on the side of caution in some cases and I believe in this subject matter we should err on the side of caution before we proceed,” Representative Barry Ivey said.
Rep. Ivey suggested the author work on the bill to make it more clear of how the custodian can decide to send the request on to the courts. A vote to voluntarily defer the bill to work more on the language failed. Now the bill is headed on to the house floor for more debate.