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Regular Session, 2010
SENATE BILL NO. 582
BY SENATOR PETERSON
PUBLIC RECORDS. Revises the Public Records Law. (gov sig)
AN ACT1
To amend and reenact R.S. 44:1(A)(3), 32(D), 35(A) and (E), and 36(A), and to enact R.S.2
44:4(44), relative to public records; to provide definitions, exemptions, and3
procedures relative to public records law; and to provide for related matters.4
Be it enacted by the Legislature of Louisiana:5
Section 1. R.S. 44:1(A)(3), 32(D), 35(A) and (E), and 36(A) are hereby amended6
and reenacted, and R.S. 44:4(44) is hereby enacted, to read as follows: 7
§1. General definitions8
A.(1) * * *9
* * *10
(3) As used in this Chapter, the word "custodian" means the public official11
or head of any public body designated by the public body as having custody or12
control of a public record of that public body, or a representative specifically13
authorized by him to respond to requests to inspect any such public records.14
"Custodian" shall not mean any person who is not designated by the public15
body as having custody or control of a public record of that public body but16
who otherwise has access to the records of the public body.17 SB NO. 582
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* * *1
§4. Applicability2
This Chapter shall not apply:3
* * *4
(44) To any information transmitted or received by electronic mail;5
however, any record, writing, account, letter, letter book, data, exhibit,6
photograph, report, drawing, chart, map, or copy or memorandum thereof, that7
is attached to or incorporated into an electronic mail message and that would8
otherwise be a public record as defined by R.S. 44:1(A)(2) shall not be exempt9
from the provisions of this Chapter solely because it was transmitted by10
electronic mail.11
* * *12
§32. Duty to permit examination; prevention of alteration; payment for overtime;13
copies provided; fees14
* * *15
D. In any case in which a record is requested and a question is raised by the16
custodian of the record as to whether it is a public record, such custodian shall,17
within three days, exclusive of Saturdays, Sundays, and legal public holidays, of the18
receipt of the request, in writing, for such record, notify in writing the person making19
such request of his determination and the reasons therefor, or shall notify in writing20
the person making such request that the records requested are so voluminous21
that a determination as to whether they are public records cannot be made22
within three days and shall provide a date specific, not to exceed fourteen days23
from the date of the request, by which such determination shall be made. Such24
written notification shall contain a reference to the basis under law which the25
custodian has determined exempts a record, or any part thereof, from inspection,26
copying, or reproduction.27
* * *28
§35. Enforcement29 SB NO. 582
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A. Any person who has been denied the right to inspect or copy a record1
under the provisions of this Chapter, either by a final determination of the custodian2
or by the passage of five twenty days, exclusive of Saturdays, Sundays, and legal3
public holidays, from the date of his request without receiving a final determination4
in writing by the custodian, may institute proceedings for the issuance of a writ of5
mandamus, injunctive or declaratory relief, together with attorney's fees, costs and6
damages as provided for by this Section, in the district court for the parish in which7
the office of the custodian is located.8
* * *9
E.(1) If the court finds that the custodian arbitrarily or capriciously withheld10
the requested record or unreasonably or arbitrarily failed to respond to the request11
as required by R.S. 44:32, it may award the requester any actual damages proven by12
him to have resulted from the actions of the custodian except as hereinafter provided.13
In addition, if the court finds that the custodian unreasonably or arbitrarily failed to14
respond to the request as required by R.S. 44:32 it may award the requester civil15
penalties not to exceed one hundred dollars per day, exclusive of Saturdays,16
Sundays, and legal public holidays for each such day of such failure to give17
notification.18
(2) The custodian shall be personally liable for the payment of any such19
damages, and shall be liable in solido with the public body for the payment of the20
requester's attorney fees and other costs of litigation, except where the custodian has21
withheld or denied production of the requested record or records on advice of the22
legal counsel representing the public body in which the office of such custodian is23
located, and in the event the custodian retains private legal counsel for his defense24
or for bringing suit against the requester in connection with the request for records,25
the court may award attorney fees to the custodian.26
* * *27
§36. Preservation of records28
A. All persons and public bodies having custody or control of any public29 SB NO. 582
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record, other than conveyance, probate, mortgage, or other permanent records1
required by existing law to be kept for all time, shall exercise diligence and care in2
preserving the public record for the period or periods of time specified for such3
public records in formal records retention schedules developed and approved by the4
state archivist and director of the division of archives, records management, and5
history of the Department of State. However, in all instances in which a formal6
retention schedule has not been executed, such public records shall be preserved and7
maintained for a period of at least three years from the date on which the public8
record was made, or one year from the date that the term of office of the public9
official who generated the record ended, whichever is shorter. However, where10
copies of an original record exist, the original alone shall be kept; when only11
duplicate copies of a record exist, only one copy of the duplicate copies shall be12
required to be kept. Where an appropriate form of the microphotographic process has13
been utilized to record, file, and otherwise preserve such public records with14
microforms produced in compliance with the provisions of R.S. 44:415, the15
microforms shall be deemed originals in themselves, as provided by R.S. 44:39(B),16
and disposition of original documents which have been microphotographically17
preserved and of duplicates and other copies thereof shall proceed as provided in18
R.S. 44:411.19
* * *20
Section 2. This Act shall become effective upon signature by the governor or, if not21
signed by the governor, upon expiration of the time for bills to become law without signature22
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If23
vetoed by the governor and subsequently approved by the legislature, this Act shall become24
effective on the day following such approval.25
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Alden A. Clement, Jr.
DIGEST
Present law provides that for purposes of present law (Public Records Law) the word
"custodian" means the public official or head of any public body having custody or control SB NO. 582
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of a public record, or a representative specifically authorized by him to respond to requests
to inspect any such public records.
Proposed law provides that for purposes of present law (Public Records Law) the word
"custodian" means the public official or head of any public body designated by the public
body as having custody or control of a public record of that public body, or a representative
specifically authorized by him to respond to requests to inspect any such public records.
Proposed law further provides that "custodian" does not mean any person who is not
designated by the public body as having custody or control of a public record of that public
body but who otherwise may have access to the records of the public body.
Present law provides various exemptions from present law (Public Records Law).
Proposed law retains present law and adds that present law (Public Records Law) does not
apply to any information transmitted by electronic mail.
Proposed law further provides that any record, writing, account, letter, letter book, data,
exhibit, photograph, report, drawing, chart, map, or copy or memorandum thereof, that is
attached to or incorporated into an electronic mail message and transmitted by electronic
mail that would otherwise be a public record as defined by present law is not exempt from
the provisions of present law solely because it was transmitted by electronic mail.
Present law provides that in any case in which a record is requested and a question is raised
by the custodian of the record as to whether it is a public record, such custodian will within
three days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of the
request, in writing for such record, notify in writing the person making such request of his
determination and the reasons therefor. Present law further provides that such written
notification must contain a reference to the basis under law that the custodian has determined
exempts a record, or any part thereof, from inspection, copying, or reproduction.
Proposed law retains present law and further provides that when a question is raised by the
custodian of the record as to whether it is a public record, such custodian will within three
days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of the
request, in writing for such record, either notify in writing the person making such request
of his determination and the reasons therefor, or notify in writing the person making such
request that the records being requested are so voluminous that a determination as to whether
they are public records cannot be made within three days and shall provide a date specific,
not to exceed fourteen days from the date of the request, by which such determination is to
be made.
Present law provides that any person who has been denied the right to inspect or copy a
record under the provisions of this Chapter, either by a final determination of the custodian
or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays,
from the date of his request without receiving a final determination in writing by the
custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or
declaratory relief, together with attorney fees, costs and damages as provided for by present
law, in the district court for the parish in which the office of the custodian is located.
Proposed law changes the period time that must pass before a person can institute
proceedings under present law from five days to 20 days. Proposed law otherwise retains
present law.
Present law provides that if the court finds that the public records custodian arbitrarily or
capriciously withheld the requested record or unreasonably or arbitrarily failed to respond
to the request as required by present law, it may award the requester any actual damages
proven by him to have resulted from the actions of the custodian except as provided by
present law. Present law further provides that if the court finds that the custodian SB NO. 582
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unreasonably or arbitrarily failed to respond to the request as required by present law, it may
award the requester civil penalties not to exceed $100 per day, exclusive of Saturdays,
Sundays, and legal public holidays for each such day of such failure to give notification.
Proposed law retains present law.
Present law provides that the custodian is personally liable for the payment of any such
damages, and is liable in solido with the public body for the payment of the requester's
attorney 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 legal counsel representing the
public body in which the office of such custodian is located, and in the event the custodian
retains private legal counsel for his defense or for bringing suit against the requester in
connection with the request for records, the court may award attorney fees to the custodian.
Proposed law deletes this provision of present law.
Present law provides that in all instances in which a formal retention schedule for public
records has not been executed, such public records are to be preserved and maintained for
a period of at least three years from the date on which the public record was made.
Proposed law that in all instances in which a formal retention schedule for public records has
not been executed, such public records are to be preserved and maintained for a period of
at least three years from the date on which the public record was made or for a period of one
year from the date that the term of office of the public official who generated the record
ended, whichever is shorter.
Proposed law otherwise retains present law.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 44:1(A)(3), 32(D), 35(A) and (E) and 36(A); adds R.S. 44:4(44))