Ferguson v. Stephens

• Decision Date: 19 August 1993
• Docket Number: No. 92-CA-2113,92-CA-2113
• Citation: 623 So.2d 711
• Parties: 21 Media L. Rep. 2119 Hayes FERGUSON v. Jack STEPHENS, St. Bernard Parish Sheriff, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 711

623 So.2d 711

21 Media L. Rep. 2119

Hayes FERGUSON v. Jack STEPHENS, St. Bernard Parish Sheriff, et al.

No. 92-CA-2113.

Court of Appeal of Louisiana Fourth Circuit.

Aug. 19, 1993.

Jack M. Weiss, III, Steven W. Usdin, Mark B. Holton, Stone, Pigman, Walther Wittman & Hutchinson, New Orleans, for plaintiff/appellant.

Salvador E. Gutierrez, Jr., Mary A. Hand, Chalmette, for defendants/appellees.

Before ARMSTRONG, JONES and WALTZER, JJ.

ARMSTRONG, Judge.

Plaintiff, Hayes Ferguson, filed this mandamus action under the Louisiana Public Records Act, La.R.S. 44:1 et seq., against defendants, Jack Stephens, Sheriff of St. Bernard Parish, Anthony Fernandez, Chief Deputy of St. Bernard Parish, and the St. Bernard Parish Sheriff's Office, seeking to compel them to produce public records relating to the finances of the Sheriff's Office. Plaintiff now appeals a portion of the judgment, claiming the trial court erred in dismissing the Sheriff's Office from the suit and in failing to award her attorneys fees and litigation costs.

On Friday, June 19, 1992, plaintiff, a news reporter employed by The Times-Picayune Publishing Corporation, hand-delivered to the St. Bernard Parish Sheriff's Office (the "Sheriff's Office"), a letter addressed to Sheriff Jack Stephens requesting access to a "check log" for the Sheriff's Office for the period since December 1990. After receiving no response by Wednesday, June 24, 1992, plaintiff contacted the Sheriff's Office and was referred to Chief Deputy Anthony Fernandez who, plaintiff stated, informed her that he wasn't sure what she meant by "check log." In response, plaintiff submitted a letter describing more particularly that she wanted access to a computer printout of all checks written by the Sheriff's Office since December 1990. Hereinafter, we will refer to this computer printout as the check register.

On Thursday, June 25, 1992, plaintiff met with Sheriff Stephens and Deputy Fernandez regarding another matter. At that time Sheriff Stephens informed her that "the records" were ready and that she could pick them up from Deputy Fernandez that afternoon. Plaintiff was also seeking access to other records from the Sheriff's Office. Sheriff Stephens testified at trial that he did not specifically inform plaintiff that the check register would be available, but may have been referring to the other public documents. Plaintiff tried to reach Deputy Fernandez that afternoon but he failed to return her telephone call. Plaintiff telephoned Sheriff Stephens the next day, Friday, June 26, 1992. He again told her "the records" were ready and to contact Deputy Fernandez. She attempted to contact Deputy Fernandez but he failed to return her call. On Monday, June 29, 1992, Deputy Fernandez informed plaintiff that the check register was in the possession of an auditor and, thus, was not available. Plaintiff subsequently filed this suit on July 9, 1992.

At trial, Sheriff Jack Stephens testified that his attorney informed him there was an exception in the Public Records Act excluding access to records in active use by an auditor. Therefore, he said it was his position that the check register, being in active use by the auditor, would not be available to plaintiff until the audit was completed. Sheriff Stephens admitted that he never had any communication with the auditor concerning plaintiff's request for access to the records. However, Sheriff Stephens testified that he was planning to ask the auditor if and when plaintiff could obtain access to the records when the instant suit was filed. After plaintiff's suit was filed Sheriff Stephens made no further inquiry as to whether the documents could be obtained from the auditor without interrupting the audit. He was advised by his attorney that plaintiff's counsel said not to bother, that they were filing the lawsuit.

Donald Murphy, a certified public accountant, was retained by the Sheriff's Office to perform its statutorily required audit for the two year period July 1, 1989 through June 30, 1991. Murphy said the check register had been in his possession since mid-May 1992. It is somewhat unclear whether at this time he had both the check register for the two-year period ending June 30, 1991 as well as the register covering July 1, 1991 forward. Murphy testified that he completed his audit for the period ending June 30, 1991 on June 10, 1992. A copy of the report with a cover letter dated June 10, 1992 is contained in the record.

However, Murphy testified that at a June 17, 1992 exit conference subsequent to finishing the audit, the Sheriff's Office raised some questions concerning expenditures. The Sheriff's Office wanted to know more details about line item expenditures. Murphy said he needed the check register to examine for this reason. He stated that if he had found problems, an amended audit could have been filed with the state. Murphy stated that while he was only auditing the period ending June 30, 1991, he was also asked to review the check register for the period July 1, 1991 forward in the event he found problems relating to the check register for the prior period. That was why he was in possession of the check register for the period after July 1, 1991. He was in possession of that later check register as of the time of trial and it had been in his possession at least since the June 17, 1992 exit conference.

Murphy testified that prior to this litigation no one from the Sheriff's Office had contacted him regarding plaintiff's request to review the check register. Because of other obligations, Murphy said he was not working on the audit or reviewing the check register on a full time basis. In fact, Murphy admitted at trial that he had not worked on the audit for the Sheriff's Office since the June 17, 1992 exit conference. He also mentioned that he had been out-of-town for four days from July 7, 1991 to July 10, 1991. Murphy said the check register at issue was a computer printout approximately 6-8 inches thick. He admitted it would have been no problem to allow someone access to the check register for, say, one-half day for copying.

The trial court maintained defendants' exceptions of (1) lack of procedural capacity as to the St. Bernard Parish Sheriff's Office and (2) no cause of action as to Chief Deputy Anthony Fernandez. The court overruled motions of (1) unauthorized use of summary process and (2) no cause of action as to Sheriff Jack Stephens. The trial court found that there was no exception under the Public Records Act excluding public records from production because they were in active use by an auditor. Therefore, the court ordered the Sheriff to provide plaintiff access to the records on or before 1:00 P.M. July 16, 1992. The trial court also found that the Sheriff had relied on the advice of his attorney as to the applicability or existence of such an exception and acted in good faith. Therefore, the court denied plaintiff statutory attorney fees.

The trial court subsequently refused to grant defendant Jack Stephens a suspensive appeal. On the morning of July 16, 1992, defendant filed an application for emergency supervisory writs and a stay order with this court which was denied. ¹ The Louisiana Supreme Court subsequently denied the same relief to defendant. ² On July 23, 1992 the trial court denied plaintiff's motion for new trial on the issues of attorney's fees and costs and whether the exception of lack of procedural capacity should have been maintained as to the St. Bernard Sheriff's Office. On appeal, plaintiff raises the same issues as assignments of error.

PROCEDURAL CAPACITY OF THE SHERIFF'S OFFICE

In accordance with the Public Records Act, any person of the age of majority may inspect, copy or reproduce or obtain a reproduction of any public record. La.R.S. 44:31. The custodian shall present any public record to any person of the age of majority who so requests. La.R.S. 44:32. La.R.S. 44:1 defines custodian as:

[T]he public official or head of any public body having custody or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records.

This court has previously held that a Sheriff's Office is not a legal entity capable of being sued. Jenkins v. Jefferson Parish Sheriff's Office, 385 So.2d 578 (La.App. 4th Cir.1980), reversed in part on other grounds, 402 So.2d 669 (La.1981). In Jenkins, this court held that the Jefferson Parish Sheriff's Office was simply an office operated by the Sheriff of Jefferson Parish whose authority is derived from the state constitution. Id. at 579. La. Const. art. 5, Sec. 27. See also Liberty Mutual Ins. Co. v. Grant Parish Sheriff's Department, 350 So.2d 236 (La.App. 3rd Cir.1977); writ denied, 352 So.2d 235 (La.1977).

Under the Public Records Act, a person denied access to public records by the custodian of those records has the right to institute an action seeking the issuance of a writ of mandamus directing the custodian to produce the records or to enjoin the custodian from withholding the records. La.R.S. 44:35(A), (B). The burden is on the custodian to sustain his action. La.R.S. 44:35(B). Plaintiff points to La.R.S. 44:35(E)(2) which provides that where the custodian arbitrarily or capriciously either (1) withholds the records or (2) fails to respond to a request for records, a court may award the requester actual damages and the custodian shall be held personally liable in solido with the "public body" for such damages. Plaintiff submits that this provision is evidence that the Public Records Act "endows" the Sheriff's Office with the procedural capacity to be named as a defendant in a suit under the Public Records Act.

La.R.S. 44:1(A)(1) broadly defines "public body" as:

[A]ny branch, department, office, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, advisory board, or task force thereof, or any other...