Hatfield v. Bush

• Decision Date: 28 February 1989
• Citation: 540 So.2d 1178
• Parties: Dan HATFIELD, Mike Dunne and Capital City Press v. Bryan BUSH. CA 88 1647.
• Court: Court of Appeal of Louisiana — District of US

Page 1178

540 So.2d 1178

Dan HATFIELD, Mike Dunne and Capital City Press v. Bryan BUSH.

CA 88 1647.

Court of Appeal of Louisiana, First Circuit.

Feb. 28, 1989.

Frank M. Coates, Jr., Baton Rouge, for plaintiffs-appellees Dan Hatfield, Mike Dunne and Capital City Press.

Sam D'Amico, Anthony J. Marabelle, Baton Rouge, for defendant-appellant Bryan Bush.

Before CARTER, LANIER and LeBLANC, JJ.

LANIER, Judge.

This is an action by members of the news media against a custodian of alleged public records seeking to compel production of the leave records of certain public employees pursuant to La.R.S. 44:35. ¹ The record custodian filed two peremptory exceptions; one raised the objection of nonjoinder of indispensable parties ² and the other raised the objection of no cause of action. ³ The exceptions were referred to the merits. After a hearing, the trial court overruled the exceptions, rendered judgment in favor of the media, and issued a writ of mandamus to the custodian to produce the records. The custodian took this suspensive appeal. The media answered the appeal seeking attorney fees and costs ⁴ and damages for frivolous appeal. ⁵

FACTS

Plaintiffs herein are Mike Dunne, a reporter for the Baton Rouge Morning Advocate; Dan Hatfield, the city editor for the Morning Advocate; and the Capital City Press. On May 17, 1988, Mike Dunne, on his own behalf and apparently on behalf of the other plaintiffs, asked Bryan Bush, the District Attorney (DA) for the Nineteenth Judicial District Court, Parish of East Baton Rouge, to make available to him all records pertaining to the personnel leave of all employees of his office requested and/or taken between February 15 and April 15, 1988. This request was denied in a letter dated June 6, 1988, from the Chief Administrative Officer for the DA addressed to Mike Dunne which provided, in pertinent part, as follows:

Also, you requested all documentation regarding personnel leave of all employees requested or taken between February 15th and April 15, 1988, and in view of the constitutional rights of the privacy of employees as protected by the Louisiana Constitutional [sic], Article 1, Section 5, your request for employee records must be declined.

See Webb v. City of Shreveport, 371 So.2d 316 (La. 2 Cir.1979) writ denied 374 So.2d 657 and Katz v. United States, 389 U.S. [347, 88 S.Ct. 507, 19 L.Ed.2d 576] (1972[1967].

This suit was filed on June 20, 1988.

FAILURE TO JOIN INDISPENSABLE PARTIES

(Assignment of Error Number 3)

The DA asserts the trial court committed error by overruling his objection of nonjoinder of an indispensable party because "the individual employees [of the DA's office] each had their own constitutional right to privacy to be asserted in this matter and they are the proper parties to do so as opposed to their employer, the District Attorney", citing La.C.C.P. art. 641, La.R.S. 44:11, and Trahan v. Larivee, 359 So.2d 329 (La.App. 3rd Cir.1978).

La.C.C.P. art. 641 provides as follows:

Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.

No adjudication of an action can be made unless all indispensable parties are joined therein.

A party is indispensable when his joinder in the litigation is absolutely necessary to protect substantial rights. Terra Development Corporation v. Southland Dragway, Inc., 442 So.2d 587 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1225 (La.1984). When an appellate court finds a failure to join an indispensable party, it should remand the case to the trial court for the joinder of the indispensable party and a retrial of the case. Terra Development Corporation, 442 So.2d at 589. To determine if the DA's employees who filed the leave requests sought herein are indispensable parties, we must determine (1) whether their interest in this suit is so interrelated with the suit that they would be directly affected by the judgment herein, (2) whether an equitable adjudication of the controversy can be made without joining them in the action, and (3) whether their joinder is absolutely necessary to protect a substantial right.

Filed in evidence ⁶ as Court Exhibit 1 are the pertinent employee leave requests and a blank leave request form. The blank leave request form shows that a DA employee who wants leave must submit the following information: (1) name; (2) dates absent from work; (3) type of leave request, that is, (a) annual leave, (b) SRCC ⁷ compensatory time, (c) sick leave, (d) leave without pay with an explanation of the reason therefor, and (e) other type of leave with an explanation of the reason therefor; and (4) an emergency address comprised of street, city, state, zip code and telephone number. Annual leave, SRCC compensatory time and sick leave requests require a time verification. (A copy of this form is attached to this opinion as Appendix A.)

La. Const. of 1974, art. 12, Sec. 3, provides as follows:

No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.

This constitutional provision is implemented by the Louisiana Public Records Law found in Chapter 1 of Title 44 of the Revised Statutes. La.R.S. 44:1-41. In Title Research Corporation v. Rausch, 450 So.2d 933, 936 (La.1984), appears the following:

The right of the public to have access to the public records is a fundamental right, and is guaranteed by the constitution. La. Const. art 12, Sec. 3. The provision of the constitution must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Id. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public's right to see. To allow otherwise would be an improper and arbitrary restriction on the public's constitutional rights.

La.R.S. 44:11, as amended by Acts 1987, No. 371, provides as follows:

Notwithstanding anything contained in this Chapter or any other law to the contrary, the following items in the personnel records of a public employee of any public body shall be confidential:

(1) The home telephone number of the public employee where such employee has chosen to have a private or unlisted home telephone number because of the nature of his occupation with such body.

(2) The home telephone number of the public employee where such employee has requested that the number be confidential.

(3) The home address of the public employee where such employee has requested that the address be confidential.

The home telephone number and home address of a DA employee are confidential if the employee has requested them to be so. The DA's leave request form requires an employee to put down an address and a telephone number where he can be reached in an emergency. If the emergency address and telephone number are the same as the home address and telephone number, that information is confidential if the employee has so requested. Thus, La.R.S. 44:11 confers a statutory right in favor of a DA's employee (and any other public employee) to choose whether or not to permit his home address and telephone number to be subject to discovery by the public. This is a substantial right.

The right of the DA's employees to keep their home addresses and telephone numbers confidential will be directly affected by a judgment directing the DA to produce for public inspection the leave request forms which may contain this information. An equitable adjudication of the issue of the confidentiality of the leave records of the DA's employees cannot be made without joining these employees in this action because only these employees can claim confidentiality for these portions of the records or waive it. The joinder is absolutely necessary to protect this right of the DA's employees because, if they are not joined, they could (and did in the trial court judgment herein) lose this right without having their day in court.

The DA's employees have a right to privacy which, if violated, is actionable under La.C.C. art. 2315. Parish National Bank v. Lane, 397 So.2d 1282 (La.1981); Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386 (La.1979). They also have a right to privacy, pursuant to La. Const. of 1974, art. 1, Sec. 5, ⁸ at least insofar as they are protected from governmental invasions of privacy. Jaubert, 375 So.2d at 1387-1388 n. 2. In the instant case, the right of the media to have access to records kept by a public official conflicts with the right of the DA's employees to privacy. The method for resolving this conflict is discussed in Plaquemines Parish Commission Council v. Delta Development Company, Inc., 472 So.2d 560, 567-568 (La.1985), as follows:

Two classes of defendants claim, against the rights of the public and press, a right to preservation of their privacy: those defendants who were public officials and those who were not. Public officials "are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their official capacity." Nixon v. Administrator of General Services, 433 U.S. 425, 457, 97 S.Ct. 2777, 2797, 53 L.Ed.2d 867 (1977). However, public officials do, by virtue of undertaking public office, surrender "the privacy secured by law for those who elect not to place themselves in the public spotlight."

....

This court has defined the limits of the right to privacy: "the right of privacy is not absolute; it is qualified by the rights of others ... The right of privacy is also limited by society's right to be informed about legitimate subjects of public interest." Parish National Bank v. Lane, 397 So.2d 1282, 1286 (La.1981).

Thus the courts have...