People for the Ethical Treatment of Animals v. Board of Supervisors of Louisiana State University and Thomas Galligan, Individually and in His Capacity of President of Louisiana State University

• Court: Supreme Court of Louisiana
• Decided: June 28, 2024
• Docket: 2023-C-01396
• Status: Published

Opinion

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #032

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 28th day of June, 2024 are as follows:

BY Weimer, C.J.:

2023-C-01396 PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS VS. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND THOMAS GALLIGAN, INDIVIDUALLY AND IN HIS CAPACITY OF PRESIDENT OF LOUISIANA STATE UNIVERSITY (Parish of East Baton Rouge)

AFFIRMED. SEE OPINION.

Hughes, J., dissents for the reasons assigned by Justice Crain. Crichton, J., concurs in the result. Crain, J., dissents in part and assigns reasons. McCallum, J., dissents in part for the reasons assigned by Justice Crain. Griffin, J., additionally concurs and assigns reasons. SUPREME COURT OF LOUISIANA

No. 2023-C-01396

PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS

VS.

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND THOMAS GALLIGAN, INDIVIDUALLY AND IN HIS CAPACITY OF PRESIDENT OF LOUISIANA STATE UNIVERSITY

On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of East Baton Rouge

WEIMER, C.J.

This case arises out of a series of public records requests directed to a public

university seeking records related to an ongoing research project involving wild song

birds. Certiorari was granted to consider whether the lower courts erred in

interpreting and applying the provisions of the Louisiana Public Records Act, La.

R.S. 44:1 et seq., in determining that the requested records must be produced.

Finding no error in the decision below, the ruling of the court of appeal is affirmed.

FACTS AND PROCEDURAL HISTORY

This case arises out of a series of public records requests sent by People for the

Ethical Treatment of Animals (PETA) to Louisiana State University (LSU) seeking

records related to the use and treatment of wild songbirds in the labs of Dr. Christine

Lattin, an associate professor in LSU’s Department of Biological Sciences.

The first request directed to LSU was sent on May 30, 2019. It sought

veterinary care and disposition records dating from September 1, 2018, for the birds held in Dr. Lattin’s laboratory. LSU responded that it had no records responsive to

this request.

A second public records request was sent to LSU on August 5, 2019, seeking

the same veterinary care and disposition records, but this time covering the period

from September 1, 2018, until August 5, 2019 (the date of the request). Assistant

General Counsel for LSU, Johanna Posada, responded by email that same date,

stating that it was “doubtful anything ha[d] changed,” but advising that she would

contact Dr. Lattin’s office and let PETA know.

When PETA did not receive a follow-up from LSU, it submitted a third public

records request on March 17, 2020, this time seeking acquisition records as well as

veterinary care records and disposition records for the birds in Dr. Lattin’s lab for the

period dating from September 1, 2018, until the date of the request, March 17, 2020.

A fourth public records request was sent on April 15, 2020, this one requesting

veterinary care records and disposition records for birds used in the work of Ph.D.

students Keegan Stansberry and Melanie Kimball (students in Dr. Lattin’s lab) as well

as for birds used in the work of Dr. Lattin.

On May 5, 2020, PETA sent a fifth public records request to LSU. This request

seeks correspondence dating from September 1, 2018, between any LSU employees

and (1) any employees or representatives of the City of Baton Rouge, (2) any

employees or representatives of the City of Baton Rouge’s Animal Control & Rescue

Center, and (3) Dr. Lattin relating to Dr. Lattin’s plans to trap or experiment on birds

for her research. A week later, on May 12, 2020, PETA sent a sixth public records

request. This request seeks videographic records related to experiments conducted

by Dr. Lattin that were funded by the grant, “The Neurobiology of Resilience to

Environmental Challenges,” awarded to Dr. Lattin by the Louisiana Board of

2 Regents, along with inventories, indexes or catalogues of photographic and

videographic records produced and maintained by LSU depicting Dr. Lattin’s use of

animals in experiments or research. A seventh public records request followed on

June 9, 2020, seeking records pertaining to the amendment of Section 14:401 of the

Code of Ordinances of the City of Baton Rouge and Parish of East Baton Rouge to

create an exemption to the ban on trapping any bird within the corporate limits of

Baton Rouge for those holding a “scientific collecting permit.”1

Having received no records in response to its requests, on December 15, 2020,

PETA filed a Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive

Relief Pursuant to the Louisiana Public Records Act, naming as defendants the Board

of Supervisors of Louisiana State University and Thomas C. Galligan, individually

and in his capacity as President of Louisiana State University (collectively “LSU”).

The petition alleges that LSU failed to produce records responsive to PETA’s seven

public records requests. It seeks a writ of mandamus or, alternatively, a declaratory

judgment or an injunction directing LSU to immediately make available for

inspection and copying all of the information sought in the seven public records

requests. In addition, the petition seeks damages and civil penalties, reasonable

attorneys fees, and costs.

LSU answered the petition, generally denying PETA’s allegations and asserting

four affirmative defenses. LSU alleged that it acted reasonably and in good faith, and

that its response and timeliness was appropriate considering the extraordinary

circumstances of the gubernatorially declared health emergency due to COVID-19.

1 In 2019, the Code of Ordinances of the City of Baton Rouge and Parish of East Baton Rouge provided in Section 14:400: “The area within the corporate limits of the City of Baton Rouge as they now exist or may hereafter be amended from time to time is hereby designated as a bird sanctuary.” Section 14:401, in pertinent part provided: “Within the corporate limits of the city it shall be unlawful to trap, hunt, shoot or molest in any manner any bird or wildfowl or to rob bird nests or wildfowl nests.”

3 It further alleged that the animal care records sought by PETA are records of the

Institutional Animal Care and Use Committee (IACUC), a body created by federal

law, and, as a result, these records are not subject to the Louisiana Public Records

Act. Further, it asserted that certain records PETA requested were exempt from

production under La. R.S. 44:4(16) of the Louisiana Public Records Act.

Thereafter, on May 12, 2021, PETA filed a supplemental petition in which it

alleged that subsequent to the filing of its lawsuit, it submitted an eighth public

records request to LSU, again seeking all photographs and videographic records of

birds held or used by Dr. Lattin from September 1, 2019, until date of fulfillment of

the request, and all veterinary care records for birds held or used by Dr. Lattin from

April 15, 2020, to date of fulfillment. The petition avers that LSU responded to this

request with an assertion that the records are exempt from disclosure. The petition

seeks a judgment finding that LSU violated the Public Records Act by wrongfully

withholding documents responsive to the eighth public records request, a mandamus

directing LSU to provide all responsive records, and an award of civil penalties,

reasonable attorneys fees, and costs. LSU answered this supplemental petition,

denying the allegations.

Cross motions for summary judgment asserted by PETA and LSU were denied

by the district court, and the matter ultimately proceeded to an evidentiary hearing on

December 14, 2021. Following the close of evidence, the district court took the

matter under advisement. On January 11, 2022, the district court orally ruled in favor

of PETA, granting PETA access to all the records it requested. A written judgment

consistent with the oral ruling was signed by the district court on June 15, 2023,

ordering LSU to produce (1) the animal care records PETA requested of LSU, (2) the

video recordings of Dr. Lattin’s experiments on songbirds that PETA requested of

4 LSU, and (3) the records relating to Dr. Lattin’s trapping of and experiments on birds

and to the amendment to the City of Baton Rouge’s bird ordinance that PETA

requested of LSU.2 The issue of PETA’s entitlement to damages, civil penalties,

reasonable attorneys fees, and costs was reserved for a separate determination, and

the judgment was certified as a partial final judgment. LSU appealed.

Following a thorough and exhaustive review of the evidence and the applicable

law, the court of appeal rendered judgment reversing in part, amending, and as

amended, affirming in part the judgment of the district court. People for the Ethical

Treatment of Animals v. Board of Supervisors of Louisiana State University, 22-

0976 (La.App. 1 Cir. 9/19/23), 376 So.3d 178. Specifically, the court of appeal found

that PETA’s sixth public records request, dated May 12, 2020, requesting

videographic records related to experiments carried out by Dr. Lattin and funded by

the grant “The Neurobiology of Resilience to Environmental Challenges,” as well as

any inventories of these records produced and maintained by LSU, had in fact been

answered by LSU. In response to this records request, Dr. Lattin testified that her

research related to the Board of Regents grant did not start until late summer/early fall

of 2020, which was after the date of the request and, therefore, she had no video

recordings responsive to the May 12, 2020 public records request, nor did she keep

inventories of videographic records in her lab. Because this evidence was unrefuted,

and because PETA did not suggest that the response to its sixth request was

incomplete or inaccurate, the court of appeal found that the district court abused its

2 Originally, the district court signed two judgments in conjunction with its oral ruling. However, because the judgments did not reference the actual public records requests, they lacked the definiteness and certainty of an appealable judgment. Upon order and remand by the court of appeal, the district court signed an amended judgment on June 15, 2023, and it is from this amended judgment that this review emanates.

5 discretion insofar as it ordered the production of the records sought through the May

12, 2020 public records request. Id., 22-0976 at 12-13, 376 So.3d at 188.

With respect to PETA’s eighth public records request, dated April 9, 2020,

wherein it sought the production of all photographs and videographic records of birds

held and/or used by Dr. Lattin or any other person under her supervision from

September 1, 2019, to the date of fulfillment of the request, the court of appeal found

that LSU established that Dr. Lattin’s research may lead to patentable or licensable

data, records, or information and that, as a result, the requested records are exempt

from production under La. R.S. 44:4(16)(b) until such time as they are publicly

released, published, or patented. The court of appeal went on to find, however, that

Dr. Lattin acknowledged that she had utilized portions of the videos for an article she

had published, and for presentations and seminars she had given.3 The court of

appeal determined that these video recordings are not exempt from production under

La. R.S. 44:4(16)(b) because they have been publicly released or published.

Ultimately, the court of appeal concluded that the district court had erred insofar as

it ordered LSU to produce the video recordings that were not utilized by Dr. Lattin

for the article or for her presentations and, therefore, had not been publicly released

or published. The court of appeal, thus, found that it was necessary to amend the

district court’s judgment to exclude those video recordings that remain exempt from

production under La. R.S. 44:4(16)(b). Id., 22-0976 at 15-16, 376 So.3d at 190.

In all other respects, including the orders requiring LSU to produce the animal

care records, the records relating to the amendment of the City of Baton Rouge’s bird

3 Specifically, in answers to interrogatories and her testimony, Dr. Lattin explained that out of the 647 total hours of video amassed, 180 hours of the videos were utilized for an article that she published on neophobia, 204 video hours were utilized for presentations she made in January, March, and December of 2020, as well as in January and February of 2021, and 263 video hours were utilized at two seminars in January of 2021.

6 ordinance, and the records relating to Dr. Lattin’s experiments on songbirds, the court

of appeal found no error on the part of the district court. Id., 22-0976 at 21, 376

So.3d at 193.

Upon application of LSU, certiorari was granted to examine the correctness of

the lower court rulings. People for the Ethical Treatment of Animals v. Board of

Supervisors of Louisiana State University, 23-01396 (La. 1/24/24), 377 So.3d 685.

LAW AND ANALYSIS

This case involves the right of access to public records, a right guaranteed by

the constitution. Louisiana Const. art. XII, § 3 declares: “No person shall be denied

the right to observe the deliberations of public bodies and examine public documents,

except in cases established by law.”

The constitutional right of access to public records is implemented through the

Public Records Law. La. R.S. 44:1 et seq. Through that law, the legislature sought

to guarantee, in the most expansive and unrestricted way possible, the right of the

public to inspect and reproduce those records which the law deems to be public.

Shane v. Parish of Jefferson, 14-2225, p. 9 (La. 12/8/15), 209 So.3d 726, 734. In

enacting the law, there was no intent on the part of the legislature to qualify, in any

way, the right of access. Landis v. Moreau, 00-1157, p. 4 (La. 2/21/01), 779 So.2d

691, 694-95 (quoting Title Research Corp. v. Rausch, 450 So.2d 933, 937 (La.

1984)).

In furtherance of the right of access, the Public Records Law “recognizes that

it is essential to the operation of a democratic government that the people be made

aware of all exceptions, exemptions, and limitations to the laws pertaining to public

records.” La. R.S. 44:4.1(A). Therefore, the law provides that “all exceptions,

exemptions, and limitations to the laws pertaining to public records shall be provided

7 for in [the Public Records Law] or the Constitution of Louisiana,” and “[a]ny

exception, exemption, and limitation” not provided for in either the Public Records

Law or the Constitution of Louisiana “shall have no effect.” Id. As a result, access

to public records can be denied only when the Public Records Law or the Constitution

of Louisiana specifically and unequivocally provides otherwise. Shane, 14-2225 at

9, 209 So.3d at 735.

As the court has long recognized, as is the case with Const. art. XII, § 3, the

Public Records Law must be construed expansively in favor of free and unrestricted

access to public documents. Shane, 14-2225 at 9, 209 So.3d at 735; Landis, 00-1157

at 4, 779 So.2d at 695; Title Research, 450 So.2d at 937. “Whenever there is any

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.” Boren v.

Taylor, 16-2078, p. 4 (La. 6/29/17), 223 So.3d 1130, 1132.

Pursuant to the Public Records Law, and except as otherwise provided, any

person of the age of majority may inspect, copy, or reproduce any public record, or

obtain a copy of any public record in accordance with the law’s provisions. La. R.S.

44:31(B). By definition, “public records” consist of the following:

All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including electronically stored information or information contained in databases or electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained 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 laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or

8 under the authority of the constitution or the laws of this state, are “public records”, except as otherwise provided in this Chapter or the Constitution of Louisiana.

La. R.S. 44:1(A)(2)(a).

A “public body” is defined as “any branch, department, office, agency, board,

commission, district, governing authority, political subdivision, or any committee,

subcommittee, advisory board, or task force thereof, any other instrumentality of

state, parish, or municipal government, including a public or quasi-public nonprofit

corporation designated as an entity to perform a governmental or proprietary function,

or an affiliate of a housing authority.” La. R.S. 44:1(A)(1). As an instrumentality of

state government, it is undisputed that LSU is a public body.

The Public Records Law is enforced through the procedure set forth in La. R.S.

44:35. This statute allows “[a]ny person who has been denied the right to inspect,

copy, reproduce, or obtain a copy or reproduction of a record, ... either by a

determination of the custodian or by the passage of five days, ... from the date of his

in-person, written, or electronic request” to “institute proceedings for the issuance of

a writ of mandamus, injunctive or declaratory relief.” La. R.S. 44:35(A). In such a

proceeding, “the court has jurisdiction to enjoin the custodian from withholding

records or to issue a writ of mandamus ordering the production of any records

improperly withheld from the person seeking disclosure.” La. R.S. 44:35(B). The

matter is to be determined by the court de novo, with the burden of proving the public

record was properly withheld resting squarely with the custodian. Id.; see also, La.

R.S. 44:31(B)(3) (“The burden of proving that a public record is not subject to

inspection, copying, or reproduction shall rest with the custodian.”).

As a general rule, a district court’s judgment on a writ of mandamus seeking

the production of public records is reviewed under an abuse of discretion standard,

9 while the court’s factual findings in such a proceeding are subject to manifest error

review.4 Talley v. Louisiana Dep’t of Transp. & Dev., 22-0983, p. 13 (La.App. 1

Cir. 2/24/23), 361So.3d 1041, 1050, writ denied, 23-00557 (La. 6/7/23), 361 So.3d

976. However, questions of law, such as the proper interpretation of a statute, are

reviewed de novo. Louisiana Municipal Association v. State, 04-0227, p. 35 (La.

1/19/05), 893 So.2d 809, 836.

Guided by these principles, we now turn to an examination and analysis of the

issues presented on review. Basically, it is LSU’s contention that the lower courts

erred in ordering the production of four categories of records requested by PETA: (1)

animal use/veterinary care records; (2) video recordings emanating from Dr. Lattin’s

experiments; (3) communications relating to Dr. Lattin’s plans to trap or experiment

on birds and to amend the City of Baton Rouge’s wild bird ordinance; and (4) records

relating to Dr. Lattin’s hiring of private counsel. We will examine each category of

records in turn.

Animal Use / Veterinary Care Records

In its second, third, fourth and eighth public records requests,5 PETA sought

the production of all veterinary care records–including, but not limited to, daily

observation reports, daily health check records, records of veterinarians, adverse

event reports, medical care records, cage cards and disposition records–for birds held

and/or used in Dr. Lattin’s laboratory. LSU contends that these veterinary care

4 While the district court judgment granting PETA relief does not specify whether it was granting the requested writ of mandamus or the alternative mandatory injunction, the standard of review is the same. See, Smith v. West Virginia Oil & Gas Co., 373 So.2d 488, 493 (La. 1979) (“The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court, although that discretion is reviewable if erroneously exercised.”). 5 These requests are variously dated August 5, 2019, March 17, 2020, April 15, 2020, and April 9, 2021. While PETA’s first public records request, dated May 30, 2019, also sought veterinary care records, the parties agree that this request was satisfied and is not at issue in this proceeding.

10 records are records of the IACUC, a body created by federal law and, thus, do not

qualify as public records within the meaning of Louisiana’s Public Records Law,

citing in support of that contention Dorson v. State, 94-1591 (La.App. 4 Cir.

6/29/95), 657 So.2d 755.

Citing the testimony of Dr. Rhett Stout, an LSU employee who serves in

various roles, including as a rotating member of LSU’s IACUC, the district court

found that the requested veterinary care records are in fact public records, in the

custody of LSU, which LSU must produce. The district court rejected LSU’s

contention that the records are IACUC records.

On appeal, the court of appeal agreed with the district court’s determination

that the veterinary care records are public records within the meaning of the Public

Records Law. People for the Ethical Treatment of Animals, 22-0976 at 11, 376

So.3d at 187. In reaching its conclusion, the court of appeal first noted that LSU

qualifies as a “research facility” under the provisions of the Animal Welfare Act, 7

U.S.C. § 2131, et seq.(the “AWA”). As such, it is required by federal law to establish

a committee to monitor compliance with federal regulations. At LSU, that committee

is the IACUC, a committee created pursuant to and existing because of federal laws

and regulations, accountable only to federal authorities. Insofar as its records are

concerned, the court of appeal found that federal law requires the IACUC to maintain

(1) minutes of IACUC meetings; (2) records of proposed activities involving animals,

and proposed significant changes in those activities (research proposals), and whether

IACUC approval was given or withheld; and (3) records of semiannual IACUC

reports on the research facility’s programs for the humane care and use of animals and

on its facilities. Because these records are generated and maintained pursuant to

federal law, the court of appeal explained that these particular records are not subject

11 to Louisiana’s Public Records Law, but to the federal government’s Freedom of

Information Act. Id., 22-0976 at 7-9, 376 So.3d at 185-186.

The court of appeal then turned to the question of whether the veterinary care

records sought by PETA also fall under the category of records used, possessed, and

retained for use in the performance of LSU’s research solely under authority of

federal law, rather than pursuant to state law. In doing so, the court of appeal

acknowledged the testimony of Dr. Stout, who explained that in his capacity as the

alternating veterinarian on the IACUC, he is required to oversee research animals.

Specifically, Dr. Stout testified that the animal care and use program, which is part

of the federal guidelines, includes the daily care of animals (feeding, watering,

walking, brushing, grooming and trimming toenails), as well as veterinary care and

monitoring environmental conditions (such as housing, temperature, humidity levels,

and size of cage). Dr. Stout explained that the IACUC assumes that animals are being

fed and watered daily, but has an obligation to inspect labs twice a year at which time

it may–but does not necessarily–look at the animal care records. Dr. Stout further

explained that IACUC does not generate or possess the animal care records;

nevertheless the animal care and use program is a requirement of federal law to which

LSU, as a research facility is subjected. Id., 22-0976 at 9, 376 So.3d at 186.

Based on the evidence presented, the court of appeal rejected LSU’s contention

that the veterinary care records at issue were used, prepared, possessed, and retained

for use solely under the authority of federal law. The court found the Dorson case

(which LSU cited as controlling) distinguishable because the records at issue in

Dorson–the minutes of IACUC meetings–were required to be maintained by federal

mandate, whereas no such mandate exists relative to the veterinary care records

requested by PETA. Specifically, the court of appeal found: “LSU has not pointed

12 to, and we have not found, any federal law or regulation mandating that a research

facility like LSU actually maintain records of its implementation of the AWA

standards, i.e. the veterinary care or animal use records. Therefore, while the AWA

requires research facilities to comply with minimum standards, nothing in the AWA

mandates that LSU maintain the records its keeps.” Id., 22-0976 at 10-11, 376 So.3d

at 187.

Reiterating that records maintained by a public body in the performance of its

work, duties, or functions can be denied only when a law specifically and

unequivocally provides otherwise, the court of appeal determined that LSU had failed

to identify any law denying the public access to the veterinary care records PETA

sought. Finally, the court of appeal recognized that LSU’s Board of Supervisors is

required by state law to ensure that recipients of private and federal funding comply

with the rules and regulations governing that funding, which in this case would

include the minimum standards requirements of the AWA for the humane treatment

and care of animals at research facilities. As a result, the court of appeal reasoned,

the veterinary care records for birds held in Dr. Lattin’s lab are not generated solely

according to federal law, but also according to state law and, thus, are subject to

production under Louisiana’s Public Records Law. Id., 22-0976 at 11, 376 So.3d at

187.

Before this court, LSU argues that the court of appeal erred in concluding that

the veterinary care records for birds held in Dr. Lattin’s lab are “prepared, possessed,

or retained ... under the authority of the constitution or laws of this state” and,

therefore, qualify as public records under the Public Records Act. La. R.S.

44:1(A)(2)(a). It maintains that the court of appeal’s decision is in conflict with the

decision of the Fourth Circuit Court of Appeal in Dorson, which, according to LSU,

13 involves “the same party and similar factual and legal issues” and, therefore, compels

the same result.

The question presented is, quite simply, whether the veterinary care records

requested by PETA fall within the definition of public records set forth in the Public

Records Law; i.e., whether the records were “used, ... in use, or prepared, possessed,

or retained 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 laws of this state, or by or under the

authority of any ordinance, regulation, mandate, or order of any public body.” La.

R.S. 44:1(A)(2)(a). LSU’s position is that the veterinary care records do not meet the

definition of public records (records created under the authority of state law) because

there are also federal laws that may apply. But, as the court of appeal recognized, the

fact that the AWA requires minimum standards with respect to animal husbandry and

veterinary care does not mean that the records of such care are generated solely in

accordance with federal law. Rather, the evidence adduced at the hearing of this

matter demonstrates the veterinary care records are also created and maintained

pursuant to state law.

Dr. Stout testified that records regarding birds used by Dr. Lattin at LSU are

completed to “have a record of what’s happened” and must be maintained to comply

with his veterinary license. Veterinary licensure is governed by state law. See, La.

R.S. 37:1514 and 37:1533. Further, as the court of appeal recognized, state law

requires LSU’s Board of Supervisors to ensure that LSU complies with federal law

regarding the treatment of animals by virtue of its receipt of federal funding. People

for the Ethical Treatment of Animals, 22-0976 at 11, 376 So.3d at 187. (“Among

the duties of the Board of Supervisors is to actively seek and accept forms of financial

14 assistance for educational purposes from any public or private person or agency and

to comply with rules and regulations governing funding from the federal government

or any other person or agency which are not in contravention of the constitution and

laws. See, La. R.S. 17:3351(A)(2).”) Clearly, then, state law authorizes and applies

to the veterinary care records requested.

Neither in this court nor in any of the courts below has LSU identified any law,

statute, or regulation that would exempt the veterinary care records–undeniably

created and maintained under authority of state law–from Louisiana’s Public Records

Law. It has not identified any provision in the federal law that would render the

Louisiana Public Records Law inapplicable. LSU does not take the position that the

AWA preempts state law. Nor could it. See, 7 U.S.C. § 2143(a)(8) (providing that

the AWA “shall not prohibit any State (or a political subdivision of such State) from

promulgating standards [for the humane handling, care, treatment, and transportation

of animals] in addition to those standards promulgated” by the Secretary of

Agriculture); 7 U.S.C. § 2145(b) (authorizing the Secretary of Agriculture “to

cooperate with the officials of the various States or political subdivisions thereof in

carrying out the purposes of [the AWA] and of any State, local, or municipal

legislation or ordinance on the same subject.”); see also, Hendricks County Bd. of

Zoning Appeals v. Barlow, 656 N.E.2d 481, 484-85 (Ind. Ct. App. 1995) (collecting

cases finding AWA does not preempt state law). Rather, LSU simply takes the

position that the records are IACUC records, relying for that proposition on Dr.

Stout’s testimony and the Dorson case. As the court of appeal correctly found, that

reliance is misplaced.

In Dorson, the plaintiff filed a writ of mandamus to compel the production of

records concerning animals used for medical experiments and also sought a

15 declaratory judgment that meetings of the IACUC are subject to the Open Meetings

Law, La. R.S. 42:4.1 et seq. Dorson, 94-1591 at 1, 657 So.2d at 756. After framing

the issue before it as “whether IACUC’s records were public records within the

meaning and intent of the Public Records Law,” the court of appeal rendered

judgment holding that “the minutes of IACUC meetings are not public records subject

to inspection under L.S.A.–R.S. 44:1 et seq.” Id., 94-1591 at 4, 657 So.2d at 757.

As the court of appeal recognized in this case, the records at issue in Dorson–the

minutes of IACUC meetings–are maintained pursuant to express provisions of federal

law. See, 9 C.F.R. § 2.35(a)(1) (providing that a research facility shall maintain

“[m]inutes of IACUC meetings, including records of attendance, activities of the

Committee, and Committee deliberations”). By contrast, in this case, LSU has not

identified any federal law or regulation mandating that a research facility maintain

records of its implementation of the veterinary care or animal use records that PETA

has requested.

Dr. Stout’s testimony does not support a different conclusion. In fact, Dr. Stout

testified that he does not consider the medical records he located in response to

PETA’s public records request to be IACUC records. They are not in the possession

or custody of the IACUC and they are preserved in order to maintain his veterinary

license, as well as pursuant to the AWA’s animal control and use program. Dr. Stout

identified what he considers to be the IACUC records as (1) the experimental

protocols that professors/investigators submit to the IACUC in order to obtain

approval for their proposed projects, (2) IACUC meeting minutes, (3) correspondence

between the IACUC and an investigator, (4) correspondence between the IACUC and

the university’s institutional official, and (5) biannual inspection reports. No such

records are at issue in this case.

16 Dr. Stout did testify that the animal care records sought by PETA are a part of

the animal care and use program,6 a requirement of federal law to which LSU, as a

research facility is subjected, but he also testified that the IACUC is not involved in

the day-to-day operations of the laboratory where the birds are kept, that records

concerning animal care are not sent to the IACUC, and that the IACUC would not

have the records if PETA requested them from the IACUC.

As custodian of the veterinary records requested by PETA, it was LSU’s

burden to prove that the records were properly withheld. La. R.S. 44:35(B). The

evidence establishes the Dr. Lattin’s experiments on birds and the care that is

provided to them by LSU staff in LSU facilities using public monies is LSU business;

the records of the care that is provided are not maintained solely in accordance with

federal law; state records in relation to that care are maintained because of Dr. Stout’s

need to comply with the standards of his state veterinary license; state law also

governs the treatment of animals used in federally funded experiments; and no federal

law has been identified that requires LSU to maintain the animal care records PETA

requested, much less one that operates to the exclusion or preemption of applicable

state law. Under these circumstances, the lower courts correctly determined that the

animal use/veterinary care records PETA requested fall within the definition of public

records, and are subject to production under the Public Records Law.

6 Dr. Stout clarified that the cage cards requested by PETA are not a part of the animal care and use program, and LSU offered no evidence to dispute his testimony. These records are, thus, not subject to being withheld on grounds they are IACUC records, generated solely in accordance with federal law. In a similar vein, the evidence demonstrates that LSU produced the disposition records PETA requested.

17 Video Recordings

In its eighth public records request, dated April 9, 2021, PETA sought the

production of all photographs and videographic records of birds held and/or used by

Dr. Lattin, or any other person under her supervision, from September 1, 2019, until

the date of fulfillment of the request. LSU contends that these records are exempt

from production under La. R.S. 44:4(16)(b), which provides that the Public Records

Law does not apply to:

Data, records, or information produced or collected by or for faculty or staff of state institutions of higher learning in the conduct of or as a result of, study or research on commercial, scientific or technical subjects of a patentable or licensable nature, whether sponsored by the institution alone or in conjunction with a governmental body or private concern, until such data, records, or information have been publicly released, published, or patented. [Emphasis added].

While the district court found that this statutory exception does not apply to

exempt Dr. Lattin’s video recordings from production because “LSU did not carry its

burden to prove the videos are patentable or licensable and have not been previously

published,” the court of appeal disagreed, finding that Dr. Lattin’s testimony

explaining the nature of her research was alone sufficient to demonstrate that her

research may lead to “patentable or licensable data, records, or information,”

notwithstanding the fact that, because her research was still in its early stages, she had

not yet consulted with LSU’s Office of Research and Development to determine its

patentability or licensability. People for the Ethical Treatment of Animals, 22-

0976 at 15-16, 376 So.3d at 190. LSU does not dispute this finding.

In its opinion, the court of appeal went on to determine, however, that a finding

that material is of “a patentable or licensable nature” does not end the inquiry, as

under the statutory provision, such material is no longer protected once it has been

“publicly released, published, or patented.” Drawing from the testimony of Dr.

18 Lattin, the court of appeal concluded that some of the video recordings requested by

PETA had been published in conjunction with an article Dr. Lattin had published and

in conjunction with several conferences and seminars at which she had presented her

research findings. The court of appeal ruled that these video recordings “are not

exempt from production under La. R.S. 44:4(16)(b) because they have been publicly

released or published.” Id., 22-0976 at 16, 376 So.3d at 190.

Before this court, LSU argues that the court of appeal misconstrued the

meaning of the exception set forth in La. R. S. 44:4(16)(b) and that, to be consistent

with the purpose of the exception–i.e., to protect data gathered for research until

publication of the research–the statute must be interpreted to except data, records or

information from production during the period that research is ongoing. According

to LSU, because Dr. Lattin testified that her research is ongoing and has not been

completed, the video recordings are excepted from disclosure under La. R.S.

44:4(16)(b).

In determining the applicability of the statutory exception at issue, we begin,

as we must, with the language of the statute. Touchard v. Williams, 617 So.2d

885,888 (La. 1993) (“[T]he starting point for the interpretation of any statute is the

language of the statute itself.”). The Louisiana Civil Code mandates that when a law

is clear and unambiguous and the application of the law does not lead to absurd

consequences, the law must be applied as written without further interpretation of the

intent of the legislature. La. C.C. art. 9; see also, La. R.S. 1:4. Further, the words of

a law must be given their generally prevailing meaning. La. C.C. art. 11; see also, La.

R.S. 1:3.

Here, the words of the statute are clear and unambiguous: excepted from the

reach of the Public Records Law are “[d]ata, records, or information produced or

19 collected ... in the conduct of or as a result of, study or research on commercial,

scientific or technical subjects of a patentable or licensable nature ... until such data,

records, or information have been publicly released, published, or patented.” La. R.S.

44:4(16)(b). According this language its plain meaning, it is clear that data, records

or information derived from research is only temporarily excepted from the Public

Records Law. Once it is “publicly released, published, or patented,” the Public

Records Law applies. The dispositive language, then, is the phrase “publicly

released, published, or patented,” and notably absent from this phrase is any

qualifying language creating an exception for “ongoing research.” There is simply

no requirement in the statute that research be “complete” before the Public Records

Law applies–only that it be publicly released, published, or patented.

This court has consistently held that access to public documents can only be

denied when a law specifically and unequivocally provides otherwise. Shane, 14-

2225 at 9, 209 So.3d at 735; Capital City Press v. East Baton Rouge Parish

Metropolitan Council, 96-1979, pp. 7-8 (La. 7/1/97), 696 So.2d 562, 566; Title

Research, 450 So.2d at 936. Because there is no language in the statute exempting

research that is “ongoing” or “incomplete,” this court declines the invitation to create

an exception for such under the pretext of pursuing the spirit of the law. In enacting

La. R.S. 44:4(16)(b), the legislature recognized that once data, information, and

records have been publicly released, published, or patented, protection from the

Public Records Law is no longer necessary. LSU protests that research that is part

of an ongoing project or otherwise not at a stage where it can be patented or licensed

will be placed at a competitive disadvantage if subject to public access. However,

this concern is a matter of public policy, left to the discretion of the legislature, and

20 more properly addressed in that venue. It is not for the court to create an exception

where none exists.

Through testimony, Dr. Lattin explained that her research is focused on how

an animal’s stress response helps the animal to cope with different kinds of

environmental challenges and how that response can change from something helpful

to something that can cause problems for the animal. In furtherance of that inquiry,

Dr. Lattin testified that she uses a video camera to record a bird in a cage eating or

not eating when a novel object is introduced. As of April 23, 2021, Dr. Lattin

testified that she had collected 647 hours of video. Some of those videos had been

analyzed for various types of behavior and that behavior data had been published.7

More particularly, Dr. Lattin testified that in answers to interrogatories, she listed an

article and various presentations she made at conferences and seminars with her

funding from LSU, and, in the process, identified “what video recordings were made

for that particular article or presentation.” According to those interrogatory responses

and her testimony, Dr. Lattin published an article on neophobia utilizing 180 hours

of videos. She made presentations in January, March and December 2020, as well as

in January and February 2021, utilizing 204 hours of video. She also utilized 263

hours of videos for two seminars in January 2021. While Dr. Lattin considered that

her research had not been “broadly” shared because presentations at conferences are

“pretty high level,” and usually involved “a graph or two from a project,” the Public

Records Law does not contain an exception for research that is only “narrowly”

shared, or shared only at a “pretty high level.” The issue presented is whether Dr.

Lattin has publicly released, published, or patented her research material. Based on

7 Dr. Lattin stated: “So there have been–those videos have been analyzed for some types of behaviors. And those behavior data have been published. Some of them have been published.”

21 Dr. Lattin’s testimony, the court of appeal determined that the videos she identified

as having been used in conjunction with her article and her various presentations are

not exempt from production under La. R.S. 44:4(16)(b) because they have been

publicly released or published.8 This court’s review of the law and the evidence

establishes that the court of appeal did not err in its straightforward interpretation of

either the law or the facts, and that its ruling ordering the production of those video

recordings that have been publicly released or published is correct.

Communications Relating to Dr. Lattin’s Plans to Trap or Experiment on Birds and

to Amend City of Baton Rouge’s Wild Bird Ordinance

In its fifth public records request, PETA sought the production of all

correspondence, electronic or otherwise, covering the period from September 1, 2018

until the date of the request, May 5, 2020, between any LSU employees and (1) any

employees or representatives of the City of Baton Rouge, (2) any employees or

representatives of the City of Baton Rouge’s Animal Control & Rescue Center, and

(3) Dr. Lattin, relating to Dr. Lattin’s plans to trap or experiment on birds for her

research. Additionally, in its seventh public records request, PETA sought all

records pertaining to the March 11, 2020 amendment of Section 14:401 of the Code

of Ordinances of the City of Baton Rouge and Parish of East Baton Rouge.

LSU objected to the production, arguing that the requests are unduly

burdensome. The district court rejected this contention, finding that, based on the

evidence presented, LSU and PETA had worked together and “narrowed the search

8 To the extent LSU suggests that “splicing up an entire research project, where some of the data must be disclosed while other data is protected, defies the intent of the exemption under La. R.S. 44:4(16)(b),” its argument is at odds with the plain language of the statute, as explained above. To the extent LSU suggests the videos cannot be segregated to protect the data not subject to disclosure, the court of appeal expressly disagreed, noting that Dr. Lattin did not state that the published hours of video could not be segregated from the over 647 hours of video recordings she has amassed. People for the Ethical Treatment of Animals, 22-0976 at 16; 376 So.3d at 190. LSU offers no evidence to dispute this factual determination.

22 down” to a manageable number of documents. The court of appeal concurred,

finding that “LSU offered no evidence showing that the requests for production were

so burdensome as to interfere with the operation of LSU’s constitutional and legal

duties.” People for the Ethical Treatment of Animals, 22-0976 at 20, 376 So.3d

at 192. LSU contests this factual determination, arguing that the conclusion that LSU

offered no evidence as to the burdensome nature of the requests is manifestly

erroneous.

The Public Records Law mandates that “[t]he custodian shall present any

public record to any person of the age of majority who so requests.” La. R.S.

44:32(A)(1). In fulfillment of this directive, it is not enough to overcome the public’s

right of access to public records to claim undue burden or expense; rather, it is only

where the request is so burdensome that it interferes with the custodian’s

constitutional and legal duties that the public’s right to access the records may be

restricted. Kreilow v. Louisiana State University Board of Supervisors, 19-0176,

p. 11 (La.App. 1 Cir. 11/15/15), 290 So.3d 1194, 1202. The burden of proof to justify

any restriction or limitation on the public’s right to access a public record is on the

custodian. La. R.S. 44:31(B)(3).

Through La. R.S. 44:32(A)(2), the legislature has provided a mechanism for

addressing burdensome requests. According to the provisions of this statute, “[i]f the

custodian reasonably determines that the request would substantially disrupt required

government operations, the custodian may deny access only after reasonable attempts

to narrow or specify the request with the requestor.” La. R.S. 44:32(A)(2).

The evidence presented at the hearing of this matter indicates that the parties

followed the procedure outlined in La. R.S. 44:32(A)(2). Carlton “Trey” Jones,

Deputy General Counsel for LSU, testified that his office handles public records

23 requests for the LSU system. Mr. Jones testified that while PETA’s request for

trapping records and the records of the amendment to the City’s ordinance initially

generated a large number of responses, his office worked with PETA to narrow the

search terms in an effort to come up with a manageable amount of data that his office

could review. That process of narrowing the requests had continued to the date of

trial, with Mr. Jones testifying that the most recent search (executed the day before

trial) had yielded 27 pages of results for one suggested term and 638 for the other.

Mr. Jones explained that his office was in the process of reviewing those records,

which he specifically characterized as a “manageable result,” for responsiveness so

as to remove privileged and protected data. He testified that he was hopeful that the

resulting records would satisfy PETA’s fifth and seventh public records requests, but

if not, LSU was committed to producing the records and would continue to work with

PETA to narrow the search terms until a responsive result could be provided.

Given Mr. Jones’s testimony that the narrowed search terms had produced a

“manageable” number of results, the lowers courts’ conclusion that LSU failed to

sustain its burden of proving that the requests were so burdensome as to interfere with

the operation of LSU’s constitutional and legal duties has a clear factual basis in the

record and is not manifestly erroneous.

Records relating to Dr. Lattin’s hiring of private counsel

In its seventh public records request, which, as noted above, sought a copy of

all records pertaining to the amendment of the City of Baton Rouge’s wild bird

ordinance, PETA specifically stated: “Please note that the response should include,

but is not limited to, communications on personal devices of LSU employees as well

communication platforms such as Slack.” LSU responded to PETA’s request, stating

that Dr. Lattin worked through her personal attorney, and not through LSU, to have

24 the wild bird ordinance amended, and, as a result, communications through her

personal devices are not public records.

The district court rejected LSU’s contention, finding that the evidence

contradicts LSU’s claim that Dr. Lattin’s efforts were purely a private affair.

According to the district court, “[t]he fact that a public employee used a private email

account or private cell phone, or even a private attorney to conduct business does not

make public records ‘private.’”

The court of appeal affirmed, concluding that implicit in the district court’s

ruling was a finding that Dr. Lattin’s hiring of counsel related to the work, duty, or

function of LSU, making it a public record subject to the Public Records Law. The

court of appeal found that the district court’s factual determination in this regard was

not manifestly erroneous, and that the order directing LSU to produce the records of

the amendment to the City’s ordinance was not clearly wrong. People for the

Ethical Treatment of Animals, 22-0976 at 18, 376 So.3d at 191.

Before this court, LSU argues that the lower courts erred in ordering the

production of Dr. Lattin’s records memorializing her efforts to have the wild bird

ordinance amended. According to LSU, these communications are not subject to the

Public Records Law because (1) the records are not in LSU’s custody or possession;

and (2) Dr. Lattin’s efforts to amend the ordinance were not done at the behest of

LSU, but on her own initiative.

As to LSU’s contention that public records not in its physical possession are

not subject to production under the Public Records Law, the law is well-settled.

Records need not be in the physical possession of a public body in order to fall within

the Public Records Act. Kyle v. Perrilloux, 02-1816, p. 8 (La.App. 1 Cir. 11/7/03),

868 So.2d 27, 31 (“[P]hysical possession is not synonymous with ‘custody or

25 control.’”). Under La. R.S. 44:1(A)(3), a “custodian” is defined as “the public official

... having custody or control of a public record.” (Emphasis added.) As this court has

noted, “if the legislature had intended to restrict the public’s right of access to public

documents only through a public official who had both custody and control, the

legislature would have so stated.” Shane, 14-2225 at 26, 209 So.3d at 745 n.15.

Further, and equally well-settled, is the proposition that responsive records

remain subject to the Public Records Law even if located on private devices or in

private accounts. Brumfield v. Village of Tangipahoa, 21-0082, p. 10 (La.App. 1

Cir. 12/20/21), 340 So.3d 221, 230 (a text message is included in the definition of a

public record if that text message is used in the performance of any work, duty, or

function of a public body, under the authority of state or local law); Mercato Elisio,

L.L.C. v. City of New Orleans, 18-0081 p. 10 (La.App. 4 Cir. 11/21/18), 259 So.3d

1235, 1242 (email sent from private email account of member of public body

constituted a public record where the email “was prepared, used, and possessed in

accordance with” member’s work with public body); La. Att’y Gen. Op. No. 21-0081

(October 14, 2021) (any record meeting the statutory definition of a public record,

and not subject to any recognized exception, exemption, or limitation, including

records created or sent utilizing personal email accounts, may be subject to

production under the Public Records Law). If such were not the case, a public

official could evade the Public Records Law simply by communicating about

sensitive public matters through a personal device and routinely escape public

scrutiny. Brumfield, 21-0082 at 10, 340 So.3d at 230.

As the lower courts correctly recognized, the dispositive inquiry with respect

to Dr. Lattin’s efforts to amend the wild bird ordinance is whether her

communications (including the hiring of private counsel) were used “in the conduct,

26 transaction, or performance of any business, transaction, work, duty, or function” of

a public body, under the authority of state or local law. La. R.S. 44:1(A)(2)(a). In

this regard, the evidence establishes that at a meeting attended by Dr. Stout, Dr. Lattin

and other LSU representatives, a representative from East Baton Rouge Parish animal

control advised LSU that Dr. Lattin’s trapping activities violated the City of Baton

Rouge’s wild bird ordinance. Following that meeting, Dr. Lattin conversed with

others at LSU about whether it might be possible to amend the ordinance. She then

met with a private attorney. While Dr. Lattin testified that LSU was not involved in

her efforts, and she did not work to amend the ordinance at LSU’s behest, she

acknowledged that she works for and draws a salary from LSU and that her laboratory

is at LSU. In addition, LSU students participate in her research and the birds used by

her laboratory are housed in a LSU vivarium within the city limits of Baton Rouge.

The staff that cares for the birds is paid by LSU. Finally, Dr. Lattin testified that the

animal research she performs at LSU must “apply and abide by local, state and federal

regulations.”

Given the foregoing testimony, this court is in agreement with the lower courts’

factual determination that the amendment allowing an exception to the bird sanctuary

ordinance that then permitted Dr. Lattin to trap birds within the geographic location

of the city where her employer, laboratory, and the enclosure housing the birds with

which she experiments is located relates to the work, duty, or function of LSU9 and

that records relating to the effort to effect that amendment are thus public records.

Under these facts, the lower courts did not err in ordering LSU to produce the records

of the amendment to the City of Baton Rouge’s wild bird ordinance.

9 In fact, Dr. Lattin’s efforts to amend the ordinance had the effect of legalizing the work being performed at LSU.

27 CONCLUSION

Under the Louisiana constitution and the Public Records law, the public is

guaranteed access to public records unless a law specifically and unequivocally

provides otherwise. With respect to each of the four categories of records requested

by PETA and withheld by LSU, the law and evidence support the conclusion that

LSU failed to meet its burden of proving the records were properly withheld. For the

reasons recited above, the decision of the court of appeal is affirmed.

AFFIRMED.

28 SUPREME COURT OF LOUISIANA

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND THOMAS GALLIGAN, INDIVIDUALLY AND IN HIS CAPACITY OF PRESIDENT OF LOUISIANA STATE UNIVERSITY

On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of East Baton Rouge

CRAIN, J., dissents in part and assigns reasons.

This case arises out of several public records requests related to an ongoing

research project conducted by a professor at LSU, Dr. Lattin. Research and

development at flagship institutions in our state is of paramount importance to

advance scientific endeavors and to foster the receipt of grants and funding.

Legislative action evidences the need to protect information produced or collected

in the course of academic research projects to achieve those goals. See La. R.S.

44:4(16)(b) (protecting from disclosure data of state institutions of higher learning

that are patentable or licensable). Granting unlimited or untimely access to such

research can have a chilling effect on both the research and the recruitment of

qualified scholars and the funding that follows them. Conversely, but most

important, is giving effect to the constitutional right to access public documents. See

Louisiana Const. art. XII, § 3. We must closely scrutinize each request.

The majority finds the veterinary care records are public records under our

Public Records Law, La. R.S. 4:1(A)(2)(a). LSU contends that because these

records are generated and maintained as a result of federal law and regulations, they

are not public records under state law. I agree. The veterinary care records on these particular birds in this particular lab are

kept because LSU must comply with federal law. State law is not the root of

maintaining these records. Rather, the records prove compliance during bi-annual

federal inspections. Record-keeping is a method LSU has chosen to prove

compliance with federal law and regulations. Whether the IACUC either requires or

ever checks the records is immaterial. They are kept to show compliance with the

minimum standards of federal law, the Animal Welfare Act. Compliance assures

continued funding; proof establishes compliance. LSU’s choice of the form of proof

does not transform these records into state veterinary care records. I find the

veterinary care records are not subject to public disclosure.

Video Recordings

I agree with the majority’s analysis and conclusion regarding the requested video

recordings. While I am mindful of LSU’s contention that the finished product may

be compromised if protection is not afforded to ongoing research, the statute must

be read as written and no such exception is expressed. To the extent this information

has been made public before research is finalized and its premature disclosure could

negatively impact the project, the funding, and the school’s competitive advantage,

it is incumbent upon the legislature to address it.

Records Relating to Amendment of an Ordinance

The majority found records pertaining to the amendment of the City of Baton

Rouge’s wild bird ordinance and to the hiring of private counsel were subject to the

Public Records Law. I find this to be a personal pursuit of Dr. Lattin. I agree public

information cannot be protected from disclosure simply by using private means.

But, likewise, private information is not made public simply because it is held on a

public electronic device. Dr. Lattin’s efforts to amend the wild bird ordinance were

pursued individually, not on behalf of LSU. Her status as an employee of LSU alone

does not convert her private communications into a matter for public disclosure. The

2 information sought involves Dr. Lattin’s personal interests, which secondarily affect

LSU. Because her personal privacy is predominant, I would protect the

communications relative to the ordinance and the retention of private counsel.

For these reasons, I dissent in part.

3 SUPREME COURT OF LOUISIANA

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND THOMAS GALLIGAN, INDIVIDUALLY AND IN HIS CAPACITY OF PRESIDENT OF LOUISIANA STATE UNIVERSITY

On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of East Baton Rouge

GRIFFIN, J., additionally concurs and assigns reasons.

I share Justice Crain’s policy concerns over the potential chilling effect on

research and recruitment at our state’s universities. However, I agree with the

thorough analysis of the law and facts articulated in the majority opinion. It is

incumbent on the legislature to evaluate the policy ramifications and amend the

relevant statutes if necessary.