Boren v. Taylor

GENOVESE, Judge. |! This case comes before this court pursuant to remand from the Louisiana Supreme Court. Plaintiff/Relator, Attorney James E. Boren (Boren), initially applied for supervisory writs with this court to reverse the judgment of the trial court denying his Petition for Writ of Mandamus and Review following the denial- of his public records request to the St. Landry Parish District Attorney’s Office. After this court denied Boren’s writ, he applied for a writ of review with the Louisiana Supreme Court. Boren’s writ to the supreme court was granted, and the cáse was remanded to us for briefing, argument, and a full opinion. For the reasons that follow, we affirm the judgment of the trial court. FACTS AND PROCEDURAL HISTORY The instant civil action arises from an underlying criminal matter. Boren was retained by Mr. Stephan Bergeron (Berger-on) to challenge his criminal convictions by filing an application for post-conviction re — 894 — lief. Boren made a written request for public records to the St. Landry Parish District Attorney’s Office, asking to inspect and copy any public record pertaining to the 2013 convictions of Bergeron. Earl B. Taylor, made defendant heréin and the District Attorney for St. Landry Parish (Taylor), responded to Boren’s records request by asking him to state the nature of his relationship to Bergeron, the grounds for post-conviction relief, and to establish that such grounds were not raised on appeal. Boren’s response to Taylor was that he was unable to determine whether any grounds for post-conviction relief existed without first being given access to the requested files. He did not list any of the information requested by Taylor. Taylor denied Boren’s request on July 24, 2015. Boren filed a Petition for Writ of Mandamus and Review in the trial court on August 10, 2015, which was denied on August 13, 2015. He then filed a 12supervisory writ with this court seeking review of the trial court’s ruling. This court denied Boren’s writ, finding no error in the trial court’s ruling. Boren v. Taylor, 15-911 (La.App. 3 Cir. 11/18/15) (unpublished writ).1 Thereafter, Boren filed a writ of review with, the supreme court, which granted the writ and remanded the matter for briefing, oral argument, and a full opinion. Boren v. Taylor, 15-2322 (La. 3/14/16) (unpublished writ). ISSUES Boren contends that the trial court erred in denying his application for writ of mandamus and in denying his requests for costs, attorney fees, and damages. LAW AND DISCUSSION Louisiana Constitution Article 12, § 3, provides, “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” To effect this constitutional provision, La.R.S. 44:31 was enacted and provides: A. Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees. B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person of the age of majority may inspect, copy, or reproduce any public record. (2) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record. (3) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian. The foregoing provisions recognize the public’s right of access to public records. This constitutional and statutory right is, however, not absolute. Both provisions expressly acknowledge that there are exceptions to the right of access. |sThe issue before this court is whether Boren’s request falls within the exception to the public records act found in La.R.S. 44:31.1. The tidal court concluded that it did, and we agree. Louisiana Revised Statutes 44:31.1 provides: For the purposes of this Chapter, person does not include an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for — 895 — post conviction relief under Code of Criminal Procedure Article 930.3. Notwithstanding the provisions contained in R.S. 44:32, the custodian may make an inquiry of any individual who applies for a public record to determine if such individual is in custody after sentence following a felony conviction who has exhausted his appellate remedies and the custodian may make any inquiry necessary to determine if the request of any such individual in custody for a felony conviction is limited to grounds upon which such individual may file for post conviction relief under Code of Criminal Procedure Article 930.3. This statutory provision, enacted subsequent to the general provisions of the public records law,2 is a more specific provision which was enacted to address matters of post conviction relief. To limit the “fishing expeditions” of individuals who had exhausted all other remedies, the statute set limiting parameters applicable to certain requests. The statute did so by limiting the definition of “person” so as to exclude “an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 930.3.” La.R.S. 44:31.1. Notably, the exclusion of certain “individual[s] in custody” does not provide a blánket prohibition against these individuals having access to public records; rather, such persons’ request is limited to particular grounds for post conviction |4relief. Accordingly, when a public records request is made, La,R.S. 44:32(A)3 allows the custodian of the public record to make inquiry to determine if the restrictive parameters of La.R.S. 44:31 are satisfied. In the instant matter, there is no dispute that the requested records are public records. Additionally, there is no dispute that the records being "requested are for purposes of exploring post conviction relief. Admittedly, Boren is requesting the public records of Bergeron, whose conviction is final and was affirmed on appeal, to investigate potential remedies available to Bergeron by way of post conviction relief. Clearly, Bergeron is an individual whose public records requests would be limited by La.R.S. 44:31.1. What remains in dispute is whether the exception found in La.R.S 44:31.1 also applies to Boren. If applicable, Taylor had the authority to — 896 — withhold the records due to Boren’s failure to list the grounds for post conviction relief delineated in La.Code Crim.P. Art. 930.3.4 If inapplicable, Boren] s has the right of access, and Taylor’s failure to produce the records may entitle Boren to costs, attorney fees, and damages, as he requested. La.R.S. 44:35. Boren maintains that La.R.S. 44:31.1 does not apply to him as he is not an incarcerated individual, in prison with a felony conviction, who has exhausted his appellate remedies. Taylor counters that Boren, an attorney representing Bergeron, is acting in a representative capacity and is not allowed to “wear two hats.” Narrowly stated, we must therefore decide whether La.R.S, 44:31.1 applies to an attorney seeking public records on behalf of his client who is not considered a “person” per La.R.S. 44:31.1. In support of his position, Boren argued in the trial court that if Taylor’s argument would prevail, it would produce the absurd consequence that an individual in custody who is seeking post conviction relief would not have the right to retain counsel and get full discovery. The trial court disagreed and recognized that such an interpretation did not preclude retained counsel from obtaining the records. Instead, the court explained that such an individual can retain counsel, “[i]t just means that they need to articulate what grounds they are seeking post-conviction on.”- In denying Boren’s petition, the trial court reasoned: [T]he statute was designed to stop a fishing expedition by people who are in custody. I think the statute is designed—I mean they could | shave clearly said it does not apply to an attorney representing such. It doesn’t say that. I don’t think there’s any other way for me ... to understand how to interpret that, other than to say it applies, and I don’t think it’s burdensome for an attorney to set forth a ground for post-conviction relief that he’s interested in. Now, to say, I don’t know if there’s any grounds until I look at the file, you have the entire record to determine whether or not there’s potential grounds. It is clear that the June 30[th] letter of Mr. Boren, when he requested records, was that he was requesting on behalf of someone in custody. I believe [La.R.S,] 44:31.1 applies. I believe Mr. Boren should have set forth grounds for post-conviction relief once the District Attorney requested that he do so, and as a result, I am going to deny the Petition for Writ of Mandamus and Review. In reaching its conclusion, the trial court noted that there is no jurisprudence directly addressing this issue. We agree. This court has considered the jurisprudence cited by both parties and finds that none are dispositive of this issue. — 897 — Notably, none of the cases relied upon by Boren directly address the issue of whether an attorney can request public records on behalf of an incarcerated client under La.R.S. 44:31.1 without first setting forth grounds for seeking post-conviction relief. Simply because an attorney was allowed access to public records in a district attorney’s file does not alone support Boren’s argument herein. There is no indication in the cited cases whether the attorney was required to state a reason for his request and to identify the grounds for an application for post-conviction relief. Further, in some instances, the opinions, in fact, predate La.R.S. 44:31.1 and are not instructive for that reason as well. Taylor, likewise, acknowledges an inability to direct this court to jurisprudence that directly addresses the issue before this court. Discussed in brief is Revere v. Canulette, 97-552 (La.App. 1 Cir. 5/15/98), 715 So.2d 47, writ granted in part, denied in part, 98-1493 (La. 1/29/99), 730 So.2d 870,5 wherein the court |7found that La. R.S. 44:31.1 does not violate the rights provided by the constitution. Primarily, Taylor directs this court to the following language of Judge Guidry, in his dissent, which reads: I respectfully disagree with the portion of the decision which concludes that LSA—R.S. 44:31.1 is procedural in nature. The right of access to the public records is a fundamental right guaranteed by La. Const, art. XII, § 3. Elliott v. District Attorney of Baton Rouge, 94-1804, p. 3 (La.App. 1 Cir. 9/14/95), 664 So.2d 122, 124, writ denied, 95-2509 (La. 12/15/95), 664 So.2d 440. LSA-R.S. 44:1 et seq. sets forth the means by which a person may obtain access to the public records. LSA-R.S. 44:31.1 restricts an inmate’s access to public records to situations when the inmate’s request is limited to grounds upon which the inmate may file for post-conviction relief. State ex rel. Leonard v. State, 96-1889 (La. 6/13/97), 695 So.2d 1325. Prior to the enactment of LSA-R.S. 44:31.1, courts interpreted the Public Records Act as allowing inmates the right of access to public records without limiting the access for a particular purpose. See, e.g., Elliott v. District Attorney of Baton Rouge, 664 So.2d 122. Now, LSA-R.S. 44:31.1 does away with a prisoner’s right of access to the public records “who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 930.3.” There is nothing in the statute that would allow an inmate, by mail or by representative, to escape the inquiry and denial by the custodian based on the grounds for which he seeks the records. Accordingly, I believe LSA-R.S. 44:31.1 is substantive in nature and must be applied prospectively only. For this reason, I respectfully dissent from the portion of the opinion that concludes that LSA-R.S. 44:31.1 should be applied retroactively and would conclude that the trial court erred in applying LSA-R.S. 44:31.1 retroactively to the actions filed prior to August 15,1995. Revere, 715 So.2d at 57 (emphasis added). While certainly not dispositive, this language provides some instructional value in its discussion of La.R.S. 44:31.1. — 898 — Boren argues that by the terms of the statute, it is inapplicable to him since he is not “an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies[.]” Although this statement is accurate, as Bergeron’s legal counsel, Boren is appearing in his representative capacity, and the relationship is one of principal and agent. Smart Document Solutions, LLC v. Miller, 07-670 (La.App. 3 Cir. 10/31/07), 970 So.2d 49, writ denied, 08-210 (La. 3/28/08), 978 So.2d 308. Indeed, the relationship between an attorney and a client is a unique agency relationship in that the attorney/agent acts more so in the capacity of the principal in matters of litigation. Id. Certainly, in the criminal context, the United States Supreme Court has stated ‘“the attorney is the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation[.]’ ” State v. Thomas, 10-528, 10-303, 10-529, p. 38 (La.App. 4 Cir. 7/15/10), 54 So.3d 1, 22 (quoting Vermont v. Brillon, 556 U.S. 81, 90, 129 S.Ct. 1283, 173 L.Ed.2d 231, quoting Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In this case, Boren, in requesting the public records as legal counsel for Berger-on, was acting in his representative capacity as an agent. As such, he has no greater rights than those of Bergeron. Louisiana Revised Statutes 44:31.1 applies to Berger-on and requires that he identify grounds for post conviction relief in making a request for public records; thus, the same requirements must be satisfied by Boren. Retaining counsel should not enable a defendant to circumvent the provisions of La.R.S. 44:31.1. This would yield an inequitable result in that those individuals who could afford to retain counsel would be treated differently and would be allowed freer access to the public records sought for purposes of post conviction relief than the individuals who did not have the same financial means. Additionally, such an interpretation would negate the purpose for the enactment of La.R.S. 44:31.1. For the foregoing reasons, based upon our de novo review of the record,6 we find that the trial court did not err in denying Boren’s Petition for Writ of |flMandamus and Review. Boren is the attorney for Bergeron, and, as his legal representative, the statutory requirements restricting Beregon’s access to public records are applicable to Boren. Boren may request the public records in the custody of Taylor, but he must comply with La.R.S. 44:31.1 and identify the post conviction relief grounds for which the records are sought. Given our conclusion, Boren’s remaining issue relative to costs, attorney fees, and damages is moot. DECREE For the reasons set forth herein, we affirm the judgment of the trial court denying the Petition for Writ of Mandamus and Review on behalf of James E. Boren, and we assess him with the costs of this appeal. AFFIRMED. Cooks, J., dissents and assigns written reasons. Footnotes [1] Cooks, X, dissented with reasons. [2] Louisiana Public Records Law, La.R.S. 44:1 through 44:67.2, was enacted in 1940, and La.R.S. 44:31.1 was added in 199S. [3] Louisiana Revised Statutes 44:32(A) provides: The custodian shall present any public record to any person of the age of majority who so requests. The custodian shall make no inquiry of any person who applies for a public record, except an inquiry as to the age and identification of the person and may require the person to sign a register and shall not review, examine or scrutinize any copy, photograph, or memoranda in the possession of any such person; and shall extend to the person all reasonable comfort and facility for the full exercise of the right granted by this Chapter; provided that nothing herein contained shall prevent the custodian from maintaining such vigilance as is required to prevent alteration of any record while it is being examined; and provided further, that examinations of records under the authority of this Section must be conducted during regular office or working hours, unless the custodian shall authorize examination of records in other than regular office or working hours. In this event the persons designated to represent the custodian during such examination shall be entitled to reasonable compensation to be paid to them by the public body having custody of such record, out of funds provided in' advance by the person examining such record in other thán regular office or working hours. [4] Louisiana Code of Criminal Procedure Article 930.3 provides: If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds: (1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana; (2) The court exceeded its jurisdiction; (3) The conviction or sentence subjected him to double jeopardy; (4) The limitations on the institution of prosecution had expired; (5) The statute creating the offense for which he was convicted and sentenced is unconstitutional; or (6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana. (7) The results of DNA testing performed pursuant to an application granted under Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted. [5] On writs to the supreme court, the majority opinion was reversed on the issue of retroac-tivity, and the court agreed with Judge Gui-dry’s finding that La.R.S. 44:31.1 is substantive and is a fundamental break from prior law on access to public records. Thus, the matter was remanded to the trial court to determine if the defendant was entitled to access police photographs and radio logs. [6] "[B]ecause our resolution of this particular issue involves the correct interpretation of a statute, it is a question of law, and reviewed by this court under a de novo standard of review.” Thompson v. Winn-Dixie Montgomery, Inc., 15-477, p. 8 (La. 10/14/15), 181 So.3d 656, 663 (citing Red Stick Studio Dev., L.L.C. v. State ex rel. Dep't of Econ. Dev., 10-193 (La. 1/19/11), 56 So.3d 181).