Chandler v. Ouachita Parish Sherrif's Office

121 So. 3d 1216, 2013 WL 4008458, 2013 La. App. LEXIS 1581
CourtLouisiana Court of Appeal
DecidedAugust 7, 2013
DocketNos. 48,179-CA, 48,403-CA
StatusPublished
Cited by7 cases

This text of 121 So. 3d 1216 (Chandler v. Ouachita Parish Sherrif's Office) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chandler v. Ouachita Parish Sherrif's Office, 121 So. 3d 1216, 2013 WL 4008458, 2013 La. App. LEXIS 1581 (La. Ct. App. 2013).

Opinion

STEWART, J.

hln this public records request suit by Berry Chandler (“Chandler”) against the Ouachita Parish Sheriffs Office and sheriff (referred to together as the “OPSO”), the trial court granted a declaratory judgment in favor of Chandler and ordered the OPSO to pay reasonable attorney’s fees and the costs of litigation upon finding that it failed to provide certification as required under La. R.S. 44:34 to explain the absence of requested records from its custody or control. Asserting the that the trial court erred in failing to find that the OPSO was arbitrary and capricious in responding to his public records request and liable for damages and civil penalties, Chandler appealed this judgment.

[1219]*1219In a subsequent judgment, the trial court awarded Chandler $17,000 in attorney’s fees and $3,546 in costs. Asserting that the trial court erred in awarding attorney’s fees and costs for a certification violation and that it abused its discretion in setting the amounts, the OPSO appealed. Chandler answered the appeal to seek an increase in the amounts awarded.

Finding no error or abuse of discretion by the trial court, we affirm in all respects.

FACTS

On September 10, 2010, Chandler sued the OPSO1 for a declaratory judgment, writ of mandamus, injunctive relief, damages, penalties, and attorney’s fees for alleged violations of the Public Records Act, La. R.S. |¾44:1 et seq. Chandler made written requests for public records on July 1, 2010, and July 2, 2010. Chandler alleged that the OPSO’s responses were “woefully inadequate,” that it failed to timely produce the requested records, and that it acted arbitrarily and capriciously with respect to the records and its responses.

The OPSO answered and denied the allegations. Claiming that it acted reasonably and in good faith, the OPSO asserted that it provided the requested documents in its possession to Chandler.

On March 28, 2011, Chandler filed a first supplemental and amended petition based on additional public records requests made on September 23, 2010, and February 18, 2011. Chandler alleged that the OPSO’s responses to both requests were “woefully inadequate.” The OPSO denied the allegations.

Thereafter, Chandler filed a motion and rule to show cause to determine why relief as prayed for in his petition should not be granted. Though Chandler had requested numerous public records in his four separate written requests, he limited his rule to violations pertaining to two specific requests. The first request, which was made on July 1, 2010, concerned an Article 66 subpoena return.2 Chandler alleged that the OPSO did not produce the return and that he had been advised by an OPSO officer that it had been destroyed. The second request, which was made on February 18, 2011, was for a recording of 19 telephone calls obtained by Deputy Michael Singley (“Singley”) from Tanya Coie Shoemaker |s(“Shoemaker”) in connection with an investigation of harassing calls allegedly made to her. Chandler alleged that he learned during a deposition that Singley had logged the recording of the calls into evidence. Chandler asserted that the recording of the 19 calls was not produced by the OPSO and had allegedly been destroyed, perhaps even after he requested them.

In response to the rule to show cause, the OPSO asserted that the records at issue did not exist when the request was made and that it could not produce nonexistent records.

At the hearing on September 21, 2011, Chandler called a number of witnesses in an attempt to discover what happened to the requested records and whether there was some cover-up that led to their de[1220]*1220struction. Geary Aycock, an assistant district attorney for the 4th Judicial District, testified that Shoemaker contacted him in December 2009 because she was receiving harassing telephone calls and claimed that the OPSO was not following up on her complaint. Aycock contacted the OPSO on Shoemaker’s behalf. He had no involvement thereafter and denied participating in any cover-up of an investigation of Chandler in relation to the harassing calls allegedly made to Shoemaker. Aycock explained that Shoemaker had been a victim in a criminal prosecution against Chandler that resulted in a misdemeanor plea and that she had a pending civil suit against Chandler.

Sheriff Toney had no specific knowledge about the subpoena return or the recording of the 19 calls. He testified that he did not instruct anyone to destroy these records.

|4Sgt. John Asmussen (“Asmussen”) of the OPSO testified that he prepared the Article 66 subpoena after speaking with Shoemaker about the harassing calls. The subpoena was issued to Tracfone Wireless (“Tracfone”) to obtain records related to Shoemaker’s own phone and account. According to Asmussen, Tracfone’s return stated that it did not maintain the records requested beyond a set time period. Because the return had no evidentiary value, in that it could neither prove nor disprove that the calls had been made, he shredded the return. He denied doing this with any malicious intent and stated that no one directed him to destroy the return. He further testified that when asked to produce his records to respond to Chandler’s public records request, he produced a copy of the subpoena that he had prepared.

Colonel Mark Mashaw (“Mashaw”) of the OPSO was involved in responding to Chandler’s public records requests. He testified that he looked for the recording of the 19 calls but could not find them. Later, he spoke with Singley and figured out that he had recorded the voice messages on his belt recorder, which is typically used to record the daily contacts with the public. At the end of the day, the contacts are loaded onto a computer file that is maintained for ten days only. The recorded calls were filed with the daily contacts in error and apparently deleted after the ten-day period and “long before” Chandler requested them. Mashaw testified that he asked Asmussen to produce all he had regarding the Article 66 subpoena and that the information supplied by Asmussen was turned over to Chandler. He denied that anyone directed Singley to incorrectly log the recording or | ¡Asmussen to shred the subpoena return, and he maintained that the OPSO would have provided these records to Chandler if it had them.

Chandler also called Jay Russell, the OPSO’s then-chief deputy, to testify, but Russell was not involved in responding to Chandler’s public records requests before the suit was filed and did not have any knowledge about what had been provided. Lastly, Chandler called Lisa Martin, who was prosecuted for allegedly making the harassing calls to Shoemaker. Martin claimed that someone told her there was a tape with the calls on it but that she was never allowed to listen to the tape. She admitted that the person who told her a tape existed was not with the OPSO. Martin indicated that the charges against her were dismissed.

In written reasons for judgment, the trial court concluded that the OPSO violated La. R.S. 44:34 by failing to certify in writing the reasons for the absence from its custody of the recording of the 19 calls. The trial court found that the OPSO had merely informed Chandler that it did not have the recording and that the full explanation of what happened to the recording [1221]*1221was not provided until the hearing.

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Bluebook (online)
121 So. 3d 1216, 2013 WL 4008458, 2013 La. App. LEXIS 1581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chandler-v-ouachita-parish-sherrifs-office-lactapp-2013.