06 May 2009

third circuit court of appeal reverses judge harry randow in heath v city of alexandria, la.

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This appeal arises from a judgment of the Ninth Judicial District Court , which denied Richard J. Heath’s (hereinafter “Heath”) application for a writ of mandamus and petition for statutory penalties and attorney fees in connection with a public records request to the City of Alexandria

On January 25, 2008, Heath made both oral and written requests to Alexandria for certain public records. Heath requested city council resolutions and any documents authorizing the city attorney to file suit on behalf of Alexandria. Heath also requested any records authorizing a city official to sign for pay types.

Donna Jones (hereinafter “Jones”), the public records custodian for Alexandria, was unsure whether the records Heath sought were public records, because, at the top of Heath’s request, he made reference to an ongoing lawsuit between himself and Alexandria.

Jones referred Heath to Charles E. Johnson, Jr. (hereinafter “Johnson”),the Alexandria City Attorney. Johnson called Heath and recommended that Heath seek the requested documents through discovery, rather than through a public records request.

Neither Jones nor Johnson ever provided Heath with a final determination, in writing, as to his right to inspect or copy the requested records.

Heath filed suit asserting his right to inspect the requested documents under the Public Records Act, La.R.S. 44:1-44, on March 14, 2008.

After suit was filed, Johnson faxed two of the requested records to Heath’s attorney, later testifying that he “thought that it was ridiculous for a lawsuit to be filed over a council resolution and a job description.” Johnson acknowledged that these records, while sometimes copied and filed in relation to ongoing litigation, are also generally kept as part of Alexandria’s public records.

In its reasons for judgment, the trial court did not address Alexandria’s failure to timely allow Heath access to the requested records or the lack of a final written determination concerning Heath’s right of access to the records.

In its reasons for judgment, the trial court stated that, because Alexandria provided Heath with the requested records before trial, Heath “did not prevail in his action” and therefore was not entitled to attorney fees or penalties.

Heath appeals, asserting three assignments of error...We agree.