Reporters now face more barriers to access public records, on top of new fees the Guillory administration rolled out targeting the press. While a legal challenge and council action crawl forward, the barriers stand. And other public officials are following similar playbooks.
In September, LCG introduced a new $1-per-page fee for digital records, enabled by an update to state law and amid intensifying press scrutiny of the Guillory administration. Since then, City-Parish Attorney Greg Logan has routed reporters to the seventh floor of the Lafayette Parish Courthouse, where the old jail was once housed, to view records they’ve requested through him on a computer monitor and under the microscope of two newly installed cameras.
Youngsville’s City Council passed a $1-per-page fee for digital records in September. Youngsville Mayor Ken Ritter could not be reached for comment. Logan did not respond to requests for comment.
And District Attorney Don Landry, who has offices in the courthouse, declined to allow a reporter to use a lawyer’s phone camera to photograph a record that had been available since an August request. Attorney General Jeff Landry’s office opined in 2017 that such devices can be used to capture public documents.
Courthouse rules prohibit the public from entering with cameras or smart phones, making it impossible for reporters to capture the digital copies displayed in the courthouse. Logan has defended this approach as a way of offsetting the expense of responding to records requests. However, state law does not allow officials to pass the costs of legal review or staff time to those seeking records. And those costs would factor in regardless of how the records are ultimately produced to reporters or the public.
The tactics deployed by LCG come after legislation passed earlier this year clarified that custodians of records can charge “reasonable” fees for electronic records, much as they have always been allowed to do for hard copies. LCG and Landry began requiring prepayments of $1 per page to deliver records electronically after the law took effect in August. Media outlets, including The Current, are challenging the fee in court.
Good government advocates have begun to take notice of what’s happening in Lafayette Parish. Applications of Louisiana’s public records law vary across the state. But the fees assessed in Lafayette are drawing criticism for abusing the spirit of the law.
“These [$1 per page] fees seem to go well beyond what is reasonable for residents and the media to access documents that rightfully belong to the public,” says the Public Affairs Research Council of Louisiana’s president, Steven Procopio. “State agencies often charge 25 cents per page, but many don’t charge a fee at all for records they provide electronically. It appears the new, hefty fee levels being charged by these local government agencies are either designed as a cash grab or aimed at discouraging access to the documents, and that undermines the spirit and intent of Louisiana’s public records law.”
That legislation excluded state bodies, but the Louisiana Division of Administration now finds itself grappling with what “reasonable” means for state agencies. “For whatever reason, public records requests and fees charged have become an issue at the forefront in state government in the past year from both requesters and custodians, and [we are] looking for a way to possibly clarify or modernize rules surrounding these charges for public records,” says spokesman Jacques Berry. The agency has gathered information from about eight agencies so far and expects to soon have responses from another 20 or so. No one is charging $1 a page for digital records, Berry confirms. In fact, only three of the eight charge a fee for emailed records, he says, 25 cents per page.
Berry says he hopes the courts and other political subdivisions look to his agency for guidance. “This is a priority,” Berry adds.
Before the law change, Landry charged only 50 cents for print copies and 25 cents for digital copies. He now charges $1 for both.
LCG has long provided electronic records at no cost. But LCG’s new prepayment policy, enacted by the administration without council input, appears to only apply to media outlets, which have been reporting on Mayor-President Josh Guillory’s embattled drainage program, his efforts to supplement his income with side hustles and an FBI probe into his relationship with a drainage contractor. With the new fee in effect, that kind of reporting will cost media outlets thousands of dollars, an apparent motive of the Guillory administration.
“I wish every media outlet had to pay $100 a page. You can put me on the record with that. All these media outlets, they pry and pry,” Guillory said on KPEL shortly after the charges started. (Listen to the audio here.)
The Advertiser was the first to report LCG’s practice of sending reporters to the courthouse. Faced with the same arrangement on a request filed later, The Current brought an attorney to assist in documenting the records. Attorneys are permitted to bring smartphones into the courthouse.
While The Current reviewed the records under camera surveillance, Logan’s assistant — an LCG employee — waited outside. This time, The Current was also able to download the file onto a flash drive. (On another occasion, The Current was told that Logan had ordered there be a $1 charge levied for copying onto a portable storage device.) In other instances, contract paralegals were assigned to chaperone reporters.
Logan told the City Council Tuesday night that he was close to working out a new location where smart phones would be allowed. He argued that LCG wants to recoup some of its costs to hire attorneys to handle the requests and rejected a council member’s suggestion to pause the charges while the council works out a fee schedule ordinance.
LCG isn’t obligated to use legal review on public records requests. Increasingly, it’s become a common practice for contract attorneys to handle requests, however small. Media outlets have gone to court to secure records the Guillory administration refused to turn over.
State law does not allow public agencies to charge for staff time or legal fees accrued in responding to public records requests. Courts have held that custodians of records can charge only for the cost of “reproduction,” understood to mean the hard costs of making copies. Read an updated version of the state’s public records law here.
The change in state law passed this year cleared the path for electronic charges but did not define “reasonable” in setting parameters. The Acadiana Advocate reported that it recently paid LCG $55 for a 55-page document sent electronically, much of it redacted. By comparison, a reporter paid $5 plus 25 cents per page for documents from the Louisiana Secretary of State’s Office that were transmitted electronically.
The Current and The Acadiana Advocate sued LCG in September to stop the $1 charge, contending that a fee assessed to hit send on an email amounts to an unconstitutional barrier. At an Oct. 5 hearing in the case, District Judge Marilyn Castle denied the media organizations’ request to pause the fee while the council drafts an ordinance. A hearing on the reasonableness of the fee is slated to be held before the end of the year.
For his part, DA Don Landry declined a request to photograph a document earlier this month.
With the same lawyer in tow on Oct. 6, The Current asked to photograph a single-page document instead of writing a $1 business check, which he had previously agreed to accept as payment. Despite a 2017 attorney general’s opinion that personal hand-held scanners could be used to capture images free of charge, Landry’s assistant relayed that he would not allow a photograph, nor did he agree to let us view the record and take notes from it.
Our reporter did not have a business check to pay for the document. Landry did, however, offer a compromise, saying he would accept a personal check for $1, to avoid making another appointment to view the record in the presence of an assistant district attorney.
“As I know you are aware, courthouse security prohibits you from bringing cellphones into the courthouse. However, the public [with an appointment] is allowed to use a scanner to make copies of public records,” Landry told The Current in a followup email reminding him of the public records law, the AG opinion and his own responsibilities to uphold the law as district attorney. “Additionally, despite your violation of the rule which prohibits bringing cellphones into the courthouse, you were still able to get the information you requested,” he added. “I have no further comment.”
Landry did not respond to an email correcting his erroneous statement about a rule violation. It was an attorney, not The Current’s reporter, who brought the smart phone into the courthouse.