Trahan v. Larivee
| Decision Date | 15 November 1978 |
| Docket Number | No. 6810,6810 |
| Citation | 365 So.2d 294 |
| Parties | Boyce J. TRAHAN et al., Plaintiffs-Appellants, v. Roger P. LARIVEE et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Mike Harson, Lafayette, for plaintiffs-appellants.
Ronald J. Judice, Lafayette, for defendants-appellees.
Before GUIDRY, FORET and CUTRER, JJ.
Plaintiffs Boyce J. Trahan and Radio Station KVOL instituted this action seeking a determination of whether certain documents held by the City of Lafayette were public records subject to inspection. Made defendants were Robert P. Larivee, Chief Administrative Officer for the City of Lafayette, and Kenneth F. Bowen, Mayor of Lafayette.
This suit was previously before this court on appeal along with a companion case of City of Lafayette v. Trahan, 359 So.2d 331 (La.App. 3rd Cir. 1978); rehearing denied June 15, 1978. These cases were remanded for the purpose of adding indispensable parties. We ordered that the City Directors of Lafayette be made parties to both suits. Upon remand the directors were joined as parties defendant in this case, Boyce J. Trahan, et al v. Roger P. Larivee, et al, our docket No. 6810. The directors were not joined in the companion suit of City of Lafayette, et al v. Jim Trahan and Radio Station KVOL, Inc., our docket No. 6811. 1
The directors so joined were John Q. Hyde, David Warren, Glenn M. Weber, Phillip Lank, E. Glynn Abel, Sylvan Richard, George Landry, and Wayne Prejean. It was stipulated that the reports at issue were only those concerning Glenn M. Weber, Phillip Lank, E. Glynn Abel, Sylvan Richard, and Wayne Prejean.
From a trial court judgment in favor of the city and its officials decreeing that the documents were not subject to public inspection, Trahan and Radio Station KVOL appeal. Pursuant to the requirements of LSA-R.S. 44:35, this appeal was given preference status.
The facts of this case are not in dispute. The City of Lafayette has implemented a policy of employee performance ratings. Since April 1, 1975, substantially all city employees below the director level in the various city departments have been rated from time to time. In the latter half of 1977, a similar performance rating was prepared on all directors of the various city departments. This evaluation was conducted pursuant to the direction of the mayor with the chief administrative officer serving as the rater. On January 6, 1978, Trahan, who is vice president and general manager of KVOL, gave Larivee, who is custodian of the records, written notice of Trahan's and KVOL's intent to request access to the evaluation reports on the department directors. Larivee refused to deliver the reports to Trahan on January 10, 1978, but advised Trahan that access would be granted provided that Trahan secured written consent from each individual director. All but one of the city directors refused to give Trahan consent to review the reports. Larivee refused to turn over the documents a second time. From this latter refusal, litigation ensued.
In carrying out the employee performance rating program, the city utilizes a rating manual and evaluation form. Although the actual evaluation reports in question are not in the record, we have access to the rating manual and a copy of the evaluation form used by the rater. The purpose of the performance rating program is stated in the manual as follows:
The rating manual provides for the procedure to be followed in the rating program. The final report is forwarded to the administrating authority, and from there, the original of the report is sent to the Personnel Department and a duplicate copy is given to the employee.
The form used for the evaluation of employees contains four sections: performance review, 2 comments of rater, comments of reviewer, and employee's review and comments.
In this case, Larivee served as the rater and the evaluation was carried out in substantial conformity with the principles outlined in the rating manual to the extent that said manual could be adapted to a rating of department heads. The employee performance report form, described previously, was also used in carrying out the evaluation.
The trial judge, in written reasons for judgment, felt that these performance evaluation reports did not fall within the intended coverage of the "public records law" and were not subject to public inspection. The trial judge also was of the opinion that Art. 1 § 5 of the Louisiana Constitution of 1974 contains a built-in exemption to the public records law and that disclosure of the documents in question would seriously infringe on the privacy of the city employees.
The issue before the court is whether performance evaluation reports of the directors of various departments of the City of Lafayette are public records subject to examination under Louisiana's Public Records Law (LSA-R.S. 44:1 et seq.).
If such reports are found to be public records, the second issue arises as to whether the publication thereof would be an "invasion of privacy" under the prohibition of Louisiana Constitution Article I, § 5, 1974.
The initial question to be resolved is whether these performance evaluation reports fall within the definition of "public records." LSA-R.S. 44:1 A defines "public records" as:
"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 officer or any board or commission or office established or set up by the Constitution or the laws of this state, 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."
The act also lists certain exemptions. 3 We note, however, that personnel evaluation reports are not among the records which are exempt.
The Louisiana Public Records Law 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. Laws providing for the examination of public records must be liberally interpreted to extend rather than restrict access to public records. Bartels v. Roussel, 303 So.2d 833 (La.App. 1st Cir. 1974), writ denied 307 So.2d 372 (1975).
The reports in question were written documents prepared pursuant to the orders of the chief elected official of the City of Lafayette and were to be utilized to evaluate job performance of the various department heads in the city administration. We find that these reports fall within the broad definition of "public records" as set forth by the legislature.
Having concluded that performance evaluation reports are encompassed within the broad definition of the "public records law," we must determine if publication or disclosure should be denied as being an invasion of privacy of the employee under the provisions of La.Const. art. I § 5, 1974, which provides in pertinent part:
"Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or Invasions of privacy." (Emphasis added.)
The "invasion of privacy" has been recognized in this state beginning 167 years ago. Denis v. Laclerc, 1 Mart., O.S. 297 (1811). Tooley v. Canal Motors, Inc., 296 So.2d 453 (La.App. 4th Cir. 1974) defined the right of privacy as follows:
With this background in mind, we next turn to the jurisprudence which may assist us in determining the issue herein. Finding no Louisiana cases on this issue, we turn to the federal cases for their treatment of the subject.
The Freedom of Information Act (FOIA) enacted by Congress provides that federal agencies shall make certain information and records available to the public. Personnel files are exempt under the FOIA if such disclosure "would constitute a clearly unwarranted invasion of personal privacy."
In the case of Vaughn v. Rosen, 383 F.Supp. 1049 (D.C., D.C.1974) one of the issues presented to the court was whether the disclosure of Civil...
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