crr
OF NEW ORLEANS
Trtditiori iii Prgris.s
LAW DEPARTMENT
INTER-OFFiCE MEMORANDUM
To:
All Departments, Boards, Agencies and -im nissions
From:
Penya M. Moses-Fields, City
By:
Evelyn F. Pugh, Chief Deputy Cit) Mloriic
Edward R. Washington, III, Deputy City Aiidiy,
Allurnc
Date:
February 8, 2008
Subject:
Compliance With Public Records Act
1.
'
/
,.,
Purpose
The purpose of this memorandum is to provide rules and a procedure for departments to facilitate
prompt and complete response to Public Records Requests and ensure compliance with the
provisions of Public Records Act (La. Rev. Stat. 44:1 et seq.) for the City's public records.
The custodian of public records shall be personally liable for the payment of any damages,
resulting from the arbitrary and capricious withholding of public records a court may award, and
the custodian shall be liable in solido with the City for the payment of the requesting person's
attorney's fees and other costs of litigation, except where the custodian has withheld or denied
production of the requested record or records on advice of the City Attorney or other legal
counsel representing the City.
11.
Overview
Public records shall be made available for public inspection and copying pursuant to this
memorandum, unless the records are exempt as described in Section X.
All Departments, Boards, Agencies and Commissions
Compliance With Public Records Act
Page 2 of 7
III.
Procedure
All City records that are not exempt from inspection shall be made available for
A.
public inspection during normal working hours in a manner which does not prevent the
conduct of City business. Except as may otherwise be necessary, all records will be
produced for review or copying in the Law Department. The custodian shall make no
inquiry of any person seeking a public record, except an inquiry as to the age and
identification of the person.
The right to inspect public records entails the right to make copies. However, the
B.
person copying the records shall be required to pay for copying costs in accordance with
the provisions of section 70-557 of the City Code. The law requires that the records be
provided within 3 days of the request or that a response setting forth why they are not
available.
Persons inspecting public records shall be given a work space to review records
C.
and shall be provided with reasonable assistance. Copies will be provided upon request.
Records may not be removed from the office in which they are stored. Nothing in this
policy memorandum shall prohibit providing information to the public by telephone
where such is normal and customary.
IV.
In Person Requests to Visually Inspect Public Records
The custodian or department in custody of the records shall make no inquiry as to the reason or
purpose for the request. Every person eighteen or older may inspect, copy, reproduce or obtain a
reproduction of any public record.
The custodian shall request that the requester put their request in writing, which request should
be immediately forwarded to the Law Department along with the requested documents as soon as
possible for a determination of whether the documents requested are subject to the Public
Records Act.
V.
Written Requests for Public Records
The custodian shall write or stamp the date and time of receipt of the written request on the first
page of the written public records request and initial it. Thereafter, the custodian shall
immediately fax, email or hand-deliver a copy of the request to the Law Department within four
(4) hours of receiving the request. The custodian shall also provide copies of the requested
records along with a copy of the request to the Law Department within twenty-four (24) hours of
receiving the request. if the custodian is not able to provide copies of the records within twenty
four hours, the custodian shall inform the Law Department of that fact and the reasons for not
being able to provide the requested records.
All Departments, Boards, Agencies and Commissions
Compliance With Public Records Act
Page3of7
VI.
Subtioena
A.
Subpoena Duces Tecum Request in Civil Suits
Any department or employee thereof which is in receipt of a Subpoena Duces Tecum
shall immediately deliver the subpoena to the attorney on duty in the Law Department
along with the requested documents.
B.
Subpoenas Pursuant to a Civil or Criminal Investigation
Any City of New Orleans employee who is served with a subpoena requiring production
of any City records as part of a civil or criminal investigation should immediately notify
the Law Department and arrange to forward the subpoena for review. In no event should
the employee being investigated undertake to comply with or respond in any way to the
poena. except to provide the requested records to the Law Department as soon as
possible.
VII.
Copying Machines
Persons seeking to copy public records through the use of their own copying machine or scanner
shall be allowed to do so as long as such copying does not disrupt normal office procedure and
occurs during normal business hours at no charge.
VIII.
Preservation of Records
Unless a special provision of law requires expungement of a particular record, all
A.
persons and public bodies having custody or control of any public record (other than
conveyance, probate, mortgage, or other permanent records required by existing law to be
kept for all time) shall exercise diligence and care in preserving the public records for at
least three years from the date on which the public record was made, or from the date on
which a particular program or project was completed or closed out. However, in all
instances in which a formal retention schedule has been ordered by the State Archivist or
by Chapter 94 of the City Code, such public records shall be preserved and maintained
for any additional period required by the said schedule or Code. Any questions about
retention beyond the three year minimum set out in the City Code should be addressed to
the Division of Archives, Records Management, and History, in the Office of the
Louisiana Secretary of State and/or the City Archives Department of the New Orleans
Public Library. Also see City Attorney Opinion No. 91-82 (Request No. 88-6-6) for
additional guidance concerning the retention of certain municipal and police related
records. A copy of this opinion may be requested from the Law Department.
Public records should not be destroyed in cases where the records may be
B.
involved in actual or potential litigation.
All Departments, Boards, Agencies and Commissions
Compliance With Public Records Act
Page 4 of 7
All existing records or records hereafter accumulated by the various departments
C.
of the city which participate in federal programs or receive federal grants may be
destroyed after three years from the date on which the records were made (or the
particular program or project was closed out), unless a retention schedule prescribed by
the state archivist or guidelines for the operative federal or state program (or grant) or the
City Code requires longer retention periods for the records in question. However, such
records shall not be destroyed in any case where litigation with reference thereto is
pending or might arise, or until the appropriate city, state or federal audits have been
conducted.
No records of the City shall be destroyed unless the custodian has determined, in
consultation with the New Orleans Public Library, that the records are unsuitable for
transfer to the City Archives, pursuant to Chapter 94 of the City Code.
IX.
Attorney Work Products
The Public Records Act does not apply to writings, records or other accounts that reflect the
mental impressions, conclusions, opinions or theories of an attorney or an expert, obtained or
prepared in anticipation of litigation or in preparation for trial (See LSA-R.S. 44:4.1(C)).
Additionally, this exemption also normally applies to City employees, agents, a surety, or
indemnitor involved in such litigation (LSA. C.C.P. Article 1424). The Law Department shall be
contacted immediately by the record custodian if a request is received which the custodian
reasonably believes falls within this exemption. The custodian shall provide a written response
within three working days to the requesting person.
X.
Personal Liability
If the court finds that the custodian arbitrarily or capriciously withheld the requested record or
unreasonably or arbitrarily failed to respond to the request, it may award the requesting person
any actual damages proven to have resulted from the actions of the custodian except as
hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily
failed to respond to the request, it may award the requesting person civil penalties not to exceed
one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays, for each
day the records were not available for inspection.
The custodian of public records shall be personally liable for the payment of any such damages,
resulting from the arbitrary and capricious withholding of public records a court may award, and
the custodian shall be liable in solido with the City for the payment of the requesting person's
attorney's fees and other costs of litigation, except where the custodian has withheld or denied
production of the requested record or records on advice of the City Attorney or other legal
counsel representing the City.
Xl.
Excepticn
The following types of records are exempt from disclosure under the Public Records Act and
need not be made available for public inspection:
All Departments, Boards, Agencies and Commissions
Compliance with the Public Records Acts
Page 5 of 7
Exception For Tax Returns and Tax Files (See LSA-R.S. 47:1508, LSA R.S. 44:4(1))
Exception For Records Of Prosecutive, Investigative, and Law Enforcement Agencies. (See
LSA-R.S. 44:3)
Exception For Records Of Old Age Assistance. Aid To The Blind, Or Aid To Dependent
Children (See LSA-R.S. 44:4(2))
Hospital Records (See LSA-R.S. 44:12)
Excçpticn For Certain Personnel Record (See LSA-R.S. 44:11.)
RegistratioApd QRecords Of Libraries (See LSA-R.S. 44:13)
Risk Managemcnt Files (See LSA-R.S. 44:4(15))
Records of Violations, qpicjpal Ordinanç (See LSA-R.S. 44:9)
ployr Drug Testing (See LSA-R.S. 44:11)
Other Exemp JcQri (See LSA-R.S. 44:4.1)
XII.
Glossary
"Public Records" are defined as all books, records, writings, accounts, letters and letter books,
maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies,
duplicates, photographs, including microfilm, or other reproductions thereof', or any other
documentary materials, regardless of physical form or characteristics, including information
contained in electronic data processing equipment, having been used, being in use, or prepared,
possessed, or retained for use in the conduct, transaction, or performance of any business,
transaction, work, duty, or function which was conducted, transacted, or performed by or under
the authority of the constitution or laws of this state, or by or under the authority of any
ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment
of any money received or paid by or under the authority of the constitution or the laws of this
state. Thus, as a general rule, all print or electronic documents, including drafts or incomplete
documents in progress and including photostatic copies, handwritten notes, et cetera, are public
records.
For example, a handwritten incomplete draft of a letter from a department head to
a City contractor regarding his contract, which the department head has brought to
his home to work on, is a public record; the same department head's personal
gasoline credit card statement, which he has carried to his office in order to mail
payment at lunch time, is not. However, the same statement would become a
public record if it contained evidence of reimbursable City travel expenses for
which the head was seeking reimbursement.
All Departments, Boards, Agencies and Commissions
Compliance with the Public Records Acts
Page 6 of 7
"Custodian" means the public official or head of any public body having custody or control of a
public record, or a representative specifically authorized by her or him to respond to requests to
inspect public records. Although the custodian may authorize a representative to respond to
requests to inspect public records, the custodian may not delegate the responsibility for
maintaining the public records. Requests made to employees not specifically authorized to
respond to requests shall be referred to such a person and the requesting individual appropriately
notified. The custodian shall ensure that records are not altered, removed or destroyed.
"Public Body" means any branch, department, office, agency, board, commission, district,
governing authority, political subdivision, or any committee, subcommittee, advisory board, or
task force thereof, or any other instrumentality of parish or municipal government, including a
public or quasi-public non-profit corporation designated as an entity to perform a governmental
or propriety function (e.g., the French Market Corporation). The appointing authority of a
department, board, agency or commission of the government of the City of New Orleans will be
considered the custodian for purposes of compliance with this memorandum and the Public
Records Act.
"Email and Text Message Records Stored On Computer Systems" E-mail and text messages are
text documents which are created, stored and delivered in an electronic format. As such e-mail
messages are similar to other forms of communicated messages such as correspondence,
memoranda, and circular letters. E-mail use within the municipality shall be used for official
business only. Users should take note that the information generated on e-mail may be a public
record subject to public inspection.
A public record is any information, regardless of physical form or characteristic and including
electronic data processing records, made or received in connection with the transaction of public
business. Generally, many e-mail messages are temporary communications which are non-vital
and may be discarded routinely. However, depending on the content of the e-mail, it may be
considered a public record.
Some examples of e-mail messages (including messages with attachments) that are public
records and therefore covered by these guidelines include:
•
•
•
•
•
•
•
policies and directives
correspondence related to official business
work schedules
meeting agendas or minutes
any document that initiates, authorizes, or completes a business transaction
reports
drafi documents that are to be reviewed and/or commented upon
Other e-mail messages qualify as public records but have extremely limited value. Examples
include:
•
"Call me when you return to your office."
$
All Departments, Boards, Agencies and Commissions
Compliance with the Public Records Acts
Page 7 of 7
• "Can you meet on Thursday?"
• "There is an interesting article on this subject at
• "Budget requests are due on the 30th,,
_____________
Accordingly, employees have the same responsibilities for e-mail messages as they do for any
other public record and must distinguish between public records and non-public record
information.
Personal e-mail messages and announcements not related to municipal business, or copies or of
extracts of documents c-mailed for convenience or reference are generally not considered public
records. Personal e-mail is not a public record and should be avoided altogether or used
sparingly. These non-public record messages should be deleted from files as soon as they have
fulfilled their purpose. These are records that are not required to be kept under law or whose
preservation is not necessary or convenient to conduct municipal business.
"Electronic Records" Records stored in an unusual manner such as on electronic data processing
tapes or microfilm should be made available for review. Usually the reproduction of the tape or
microfilm will not be a necessity unless that is the only source of the information. If tape,
microfilm or a record retained in another such medium is to be reproduced, the applicant must
pay the actual cost of reproduction. When a person requests records in an electronic format, the
custodian will provide the nonexempt records or portions of such records that are reasonably
locatable in an electronic format that is used by the agency and is generally commercially
available, or in a format that is reasonably translatable from the format in which the agency
keeps the record. If the record is not reasonably locatable or not reasonably translatable into the
format requested, the custodian may charge a fee for such customized access.
XIII.
Inquiries
Any questions concerning the intent of this memorandum should be addressed to
A.
the Chief Administrative Office.
Specific questions concerning the Public Records Act should be referred to the
B.
attorney-on-duty in the Law Department.
G:\lnhouse\LW1NHSE\LU-ZR&O\Pub1ic Rccords\PoIicy Memo to PMF 4.doc