Times Picayune Pub. Corp. v. BD. OF SUP'RS

845 So. 2d 599, 2003 WL 21040223
CourtLouisiana Court of Appeal
DecidedMay 9, 2003
Docket2002 CA 2551
StatusPublished
Cited by17 cases

This text of 845 So. 2d 599 (Times Picayune Pub. Corp. v. BD. OF SUP'RS) 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
Times Picayune Pub. Corp. v. BD. OF SUP'RS, 845 So. 2d 599, 2003 WL 21040223 (La. Ct. App. 2003).

Opinion

845 So.2d 599 (2003)

THE TIMES PICAYUNE PUBLISHING CORPORATION and Susan Finch
v.
THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College, Dr. William L. Jenkins as President of the Louisiana State University System and Secretary of the Board of Supervisors, the State of Louisiana Through the Division of Administration and William J. Kling, Jr., Acting State Risk Director and Deputy Undersecretary of the Division of Administration.

No. 2002 CA 2551.

Court of Appeal of Louisiana, First Circuit.

May 9, 2003.

*601 James R. Swanson, Loretta G. Mince, New Orleans, Counsel for Appellees The Times Picayune Publishing Corporation and Susan Finch.

Bruce Cranner, New Orleans, Counsel for Appellants LSU Board of Supervisors.

Before: FOIL, MCCLENDON, and KLINE[1], JJ.

KLINE, J., Judge Pro Tem.

This is an appeal from a declaratory judgment and the issuance of a writ of mandamus holding that specific documents reflecting payment made by the State in settling a lawsuit were public records and ordering the State's Office of Risk Management to allow public access to those documents. From this judgment, the State has appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1992, Mary Elizabeth Leger and her husband filed suit against Professor John N. Kent, D.D.S., Louisiana State University School of Dentistry and Faculty Dentist Practice among others, alleging dental malpractice and products liability arising from Dr. Kent's design of the Vitek implant and his surgical placement of the implant in Ms. Leger's temporomandibular joint.

In 1998, Ms. Adleman-Chester, along with approximately 674 other individuals, filed suit against many of the same parties asserting various claims concerning the Vitek implant. The plaintiffs in the Adelman-Chester case sought to have their case consolidated with the Leger case. Despite the State's opposition, the Civil District Court for the Parish of Orleans *602 did consolidate the cases, but limited that consolidation to discovery purposes only.

Eventually, the Office of Risk Management (ORM), the department charged with handling claims asserted against the State, began negotiations with the Legers relative to their claims. The ORM and the Legers reached a settlement on April 26, 2001 and subsequently signed an agreement to keep the terms of the settlement confidential. The parties also filed a joint motion to dismiss, with prejudice, the Legers' suit against all defendants. The motion to dismiss was granted on June 1, 2001.

On April 25, 2002, Susan Finch, a staff writer for The Times-Picayune, wrote a letter to Whitman J. Kling, Jr., then acting director of the Office of Risk Management, requesting copies of public records pursuant to the Louisiana Public Records Act. Specifically, Ms. Finch requested "copies of any check or checks, together with any related documents, that reflect payment by the State of Louisiana to settle... [the case] entitled Mary Elizabeth Leger et al versus John N. Kent, D.D.S. et al."

Mr. Kling's response of April 29, 2002 advised Ms. Finch that her public records request regarding the Leger case could not be fulfilled. Mr. Kling asserted that the Leger case was an "open claim file and under the provisions of LRS 44:4(15)[was] not subject to disclosure under" the Louisiana Public Records Act.

On May 16, 2002, James Swanson, counsel for The Times-Picayune, wrote to Mr. Kling regarding his refusal of Ms. Finch's request, as follows:

"In your letter, you have refused to provide records relating to a settlement entered into in the Spring of 2001 with Mary Elizabeth Leger on the basis that there is still a pending claim file. I cannot understand why, except as a device to defeat a Public Records Law request, this would be since this claim has been settled for well over a year. Before I bring a suit under the Public Records Act... I want to be sure I understand your position. I would, therefore, appreciate if you would outline in more detail the basis of the contention that the file is currently pending."

The ORM again responded on May 20, 2002 in a letter authored by newly appointed ORM Director, Julian S. Thompson, Jr.[2] The letter stated:

"Mary Elizabeth and Albert Leger v. John Kent, D.D.S." remains an open file in the Office of Risk Management at this time. We decline to provide you with further information regarding the matter except to reiterate that the contents of open files are exempt under the Public Records Act.

Consequently, The Times-Picayune and its writer Susan Finch filed suit against the State pursuant to the Public Records Act. Specifically, they prayed that the court issue a declaratory judgment that the sought-after information was public record as defined by the Act and that a writ of mandamus be issued ordering the Office of Risk Management to produce the requested information.[3]

The State filed its answer on July 22, 2002 wherein it averred that the records requested by the The Times-Picayune were exempt "from the provisions of the Louisiana Public Records Act, pursuant to R.S. 44:4(15) as the information requested *603 [was] contained in a matter that is considered pending/open at the Office of Risk Management."

Soon thereafter, in an affidavit dated August 13, 2002, Julian S. Thompson, Jr. stated:

(1) That he is a Director of Risk Management for the State of Louisiana;
(2) That he is familiar with the status of the file entitled: Leger v. Kent, ORM File # 93X/0824LEGER, which is in the custody and control of the Office of Risk Management for the State of Louisiana and under his jurisdiction as the Director of Risk Management for the State of Louisiana;
(3) That this file was opened in the Office of Risk Management as a litigation file on the 11th day of December, 1992 and remains a pending claim file in litigation....;
(4) That the file Leger v. Kent, ORM File # 93X/0824LEGER, will remain a pending claim file until the resolution of the jaw implant litigation involving LSU and Dr. Kent.

A hearing on the matter was set for September 6, 2002. Although the Legers' claims had been settled and their suit dismissed by June of 2001, ORM Director Thompson maintained that the Leger file still retained pending status because other claims involving the Vitek implant were still pending. At the hearing, ORM Director Thompson was questioned as follows:

Q: Do you have any idea how it could be that once a case is dismissed it would still be consolidated and pending with another case? Can you explain that concept?
A: In this particular case all the discovery and litigation strategy was developed under this case, under the contracts that we had issued for this case, and so they are held in that file and that (sic) are related to all the other Vitek cases.
Q: Let me ask you this. There is—in the Office of Risk Management there is a file for the Leger case, is that correct?
A: Yes.
Q: And there is a file for the Adelman-Chester case?
A: Yes.
Q: And those are separate files?
A: Yes.
* * * * * *
Q: You would also agree that the Leger case is a—in your words, distinctly different case than the Adelman-Chester

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Cite This Page — Counsel Stack

Bluebook (online)
845 So. 2d 599, 2003 WL 21040223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/times-picayune-pub-corp-v-bd-of-suprs-lactapp-2003.