Bartels v. Roussel

• Decision Date: 08 November 1974
• Docket Number: No. 10168,10168
• Parties: Paul B. BARTELS v. B. H. ROUSSEL et al.
• Court: Court of Appeal of Louisiana — District of US

Page 833

303 So.2d 833

Paul B. BARTELS v. B. H. ROUSSEL et al.

No. 10168.

Court of Appeal of Louisiana, First Circuit.

Nov. 8, 1974.

Rehearing Denied Dec. 16, 1974.

Writ Refused Jan. 31, 1975.

Wm. Luther Wilson, Baton Rouge, for appellant.

Joseph F. Keogh, Baton Rouge, for appellees.

Before LANDRY, BLANCHE and NEHRBASS, JJ.

LANDRY, Judge.

Plaintiff, Paul M. Bartels (Appellant), appeals from judgment of the trial court recalling a previously issued alternative writ of mandamus and dismissing Appellant's action to compel the Honorable W . W. Dumas, Mayor-President, and the Honorable B. H. Roussel, Director of Finance, City of Baton Rouge, Parish of East Baton Rouge (Appellees), to permit Appellant's examination and inspection of certain alleged public documents pursuant to LSA-R.S. 44:1 et seq. (the Public Records Law). The documents in question consist of completed department and nondepartment budget requests of all departments, agencies, offices and instrumentalities of the City of Baton Rouge-Parish of East Baton Rouge (City-Parish), which will receive funds from the City-Parish for the fiscal year 1975. We reverse and enter a writ of mandamus ordering and directing Appellees to permit Appellant's examination of subject records which we find and declare to be public documents as defined in the applicable statute.

Appellees argue that the Public Records Law is inapplicable herein because the City-Parish Charter, La.Const. Article XIV, Section 3(a), vests the City-Parish with special powers and privileges. It is contended that said constitutional provision is self-executing; that it predominates over general state laws in conflict therewith, and according to its provisions, declares that the records in question are not public records. Alternatively, Appellees maintain that application of the Public Records Law in this instance would constitute an unconstitutional discrimination against the City-Parish and other municipal and parish governmental agencies. It is also urged that application of the Public Records Law in this case would be unconstitutional as a violation of the separation of powers concept of government. In this respect, it is argued that the City-Parish is an executive branch of government created by the constitution and, as such, entitled to the same treatment as the executive, legislative and judicial branches of state government.

The facts are undisputed. Appellee Roussel has in his possession finalized budget requests from every department, agency, office and instrumentality of the City-Parish. The written requests have been bound into four volumes to facilitate their study by Roussel as Director of Finance. Eventually Roussel will make recommendations to the Mayor based on the requests received. Thereafter the Mayor will formulate a budget and submit it to the governing authority for adoption of a budget for the ensuing 1975 fiscal year. Appellant has sought permission to view these documents, make copies thereof and otherwise inspect them, notwithstanding the Mayor has not yet prepared his budget.

LSA-R.S. 44:1 defines public records as follows:

'A. All records, writings, accounts, letters and letter books, maps, drawings, memoranda and papers, and all copies or duplicates thereof, and all photographs or other similar reproductions of the same, having been used, being in use, or prepared 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 the laws of this state, or the ordinances or mandates or orders of any municipal or parish government * * * or concerning or relating to the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state are public records, subject to the provisions of this chapter except as hereinafter provided.' (Emphasis by the Court.)

The documents at issue were prepared by Department heads pursuant to Section 8.07 of the City-Parish Charter which provides:

'SECTION 8.07. Departmental Estimates. The head of every department, office or agency receiving financial support from the parish council or the city council shall file with the director of finance, not later than the tenth day in October in each year, estimates of revenue cash receipts to be received by that department, office or agency for or on account of the parish, city, or any district, and of the expenditures of that department, office, or agency for the ensuing year. Such estimates shall be submitted upon forms furnished by the director of finance and shall contain all information which the Mayor-President shall require. The Mayor-President, with the assistance of the director of finance, shall review these estimates and revise them as he may deem advisable.'

In contending that the reports are not public records, Appellees rely upon Section 8.13 of the City-Parish Charter which reads as follows:

'All the budgets and supplementary schedules submitted by the mayor-president shall be public records and shall be open to inspection in the office of the parish clerk during regular business hours. The budget message and the current expense and capital budgets shall be published in the official journal of the parish not later than the sixth day following their submission, together with notice of public hearings therein to be held not later than the fourteenth day following such publication. (As amended November 8, 1966.)'

Appellees suggest that since Section 8.13 expressly provides that the Mayor's budget and all supplemental documents shall be public, said documents do not become public until the budget is prepared by the Mayor and adopted by the governing authority. According to Appellees, after adoption of the budget, Appellant and any other interested party is entitled to access to the documents in question.

The trial court did not directly determine whether the documents were public documents. In essence the lower court held that if the documents were public, certain administrative considerations dictated delay of the right to public examination until after the budget was adopted by the governing authority. In effect, the lower court determined that to make the documents public before final adoption of the budget would subject the governmental authorities to unwarranted pressure from groups or interests favoring or opposing expenditure of public funds for certain purposes. On this ground, the court concluded that to deny the right of examination and inspection at this time would merely defer the right of examination which delay was justified in the public interest.

LSA-R.S. 44:1 et seq., was obviously intended to implement the inherent right of the public to be reasonably informed as to the manner, basis and reasons upon which governmental affairs are conducted. Section 1(A), hereinabove set forth, clearly provides that documents, etc., which have been used, are being used or which were prepared for use in the conduct of public business, are public records.

Numerous exemptions are contained in the statute. Section 44:1, subd. B exempts, under certain circumstances, electric logs filed with the Commissioner of Conservation in connection with off shore wells. Section 44:3 exempts certain records of the attorney general, district attorneys, sheriffs, police departments, marshals, investigative and intelligence agencies. These exemptions are clearly designed to protect confidential sources of information and insure that undue publicity will not prejudice pending criminal prosecutions. Section 44:4 exempts certain tax returns and information. Records of the Governor, except those pertaining to money or financial transactions handled by the Governor, are exampt by the provisions of Section 44:5. Hospital records, charts and other records kept on patients, by public hospitals and similar institutions, are likewise exempt by Section 44:7.

The right of the public to examination of public documents and the duty of custodians of such records to permit access thereto is expressly provided by Section 44:32, which recites:

'All persons having custody or control of any public record shall present it to any person who is authorized by the provisions of this Chapter and who applies during the regular officer hours or working hours of the person to whom the application is made. The persons in custody or control of a public record shall make no inquiry of any person authorized by this Chapter who applies for a public record, beyond the purpose of establishing his authority; and shall not review nor examine or scrutinize any copy, photograph or memoranda in the possession of any auhtorized person; and shall give, grant and extend to the authorized persons all resasonable comfort and facility for the full exercise of the right granted by this Chapter; provided, that nothing herein contained shall prevent the lawful custodian of a record from maintaining such vigilance as is required to prevent alteration of any such record while same is being examined by a person under the authority of this section; and provided further, that notwithstanding the requirements contained hereinabove, examinations of records under the authority of this section must be conducted during regular office or working hours. If the chief of the office of the person next in authority among those present in the office shall authorize examination of...