New Orleans Convention and Visitors Bureau petitioned to be responsive to Public Records Requests

May 15, 2013 by

On Thursday, May 16, 2013, Justin L. Winch of Smith Stag, LLC will be petitioning the Civil District Court for the Parish of Orleans as the Plaintiff in the matter of Justin L. Winch v. J. Stephen Perry, President and CEO of New Orleans Convention and Visitors Bureau, Steve Moeller, and Kelly Schulz to declare the New Orleans Convention and Visitors Bureau as being subject to Public Records Law.

 

If successful, this private entity that receives public funds will be required to be responsive to Public Records Requests (PRRs).

Historically The New Orleans Convention and Visitors Bureau has played the role of “public agency” when it suits the agency to do so (for example, when seeking public sources of revenue via tax dollars), but also holds itself to be a private entity in general. However, this action would establish that if even one penny of any particular report or project was funded via the taxpayers of New Orleans, its records would be considered a public matter by default.

When Senate Bill 573 regarding the proposed “Hospitality Zone” was considered during the 2012 Louisiana Legislative Session, I filed a PRR to obtain a copy of the Boston Consulting Group’s report that was being cited as a blueprint for the future of the tourism industry in New Orleans. I received the following response via email an email (received 5/9/12) and a follow-up letter (received 5/10/12) from a prestigious law firm:

“We have been asked by the New Orleans Convention and Visitors Bureau (the CVB) to respond to your email of May 9, 2012 requesting a copy of the full report of the Boston Consulting Group. We advise you that the CVB is a private, nonprofit 501(c)(6) corporation, organized under the Louisiana Nonprofit Corporation Law as a membership corporation and is not a public body within the meaning of the Louisiana Public Records Law. Accordingly, it does not respond to public records requests. [Emphasis added.]

 

“We are not taking any position as to whether the documents you seek are the proper subject of a public records request addressed to a public body in possession or control of such documents.”

It should be noted that I was ultimately successful in obtaining access to the report described as “proprietary” by a NOCVB staff member from the Office of the Lt. Governor Department of Culture, Recreation & Tourism, which identified the exact same document as being a public record.

Mr. Winch, however, has not been as successful in obtaining access to the records that he wishes to review:

“At the time of the filing of this petition, Plaintiff has still not been provided access to examine the requested public records, and as such, Plaintiff is being deprived of his Constitutional right to participate intelligently in the political process and engage in discourse involving the expenditure of public funds.”

It is my understanding that this petition is soon to be amended; an updated version of the document will be posted when the revisions are made available.

Update 5/16/13:

The petition was heard today before Judge Ethel Simms Julien.

As expected, legal counsel for the New Orleans Convention and Visitors Bureau primarily argued that the NOCVB, as a private, nonprofit corporation, is not required to respond to public records requests. (This was conveyed to Winch in an initial response similar to the one that I received regarding my own request noted previously in this post.)

Apparently Winch sent his public records request on a Friday and received a response from the NOCVB’s legal counsel that same day indicating that the corporation would not, in any way, be responding to his request. On the following Monday, Winch sent an email in reply, stating “Okay, you won’t give me the documents that I requested, so at least provide your 990s, which although not originally requested are now all that I have to go on regarding your expenditures until I can get the court to order you to respond to the original request.”

Today, however, the NOCVB’s legal counsel attempted to portray their willingness to produce the 990s as a response to Winch’s request. Winch then clarified that the 990s and his formal public records request were two completely separate matters, and that their willingness to produce the 990s did not answer his initial public records request. It seemed that the Judge saw through this legal sleight-of-hand.

Although I am not fully aware of the original records requested by Mr. Winch, the subsequently requested Form 990 records for the NOCVB are an annual report that certain federally tax-exempt organizations must file with the IRS to provide information regarding the organization’s mission, programs, and finances. As stated by Winch, these forms are “clearly subject to public inspection.”

Legal counsel for the NOCVB also alleged that some of the information requested in his public records request simply did not exist and that some of what was requested could instead be provided by city agencies. One of the attorneys for the NOCVB stated, “If we have to give you documents that are in the public domain to make you go away, we’ll do it.”

It is my opinion that Mr. Winch was, to a degree, successful in arguing that the NOCVB’s initial complete refusal to answer to the public records request was unacceptable and of consequence. It is my understanding that Winch is seeking a specific accounting of “the expenditure of income received from public tax dollars” by the NOCVB. At times during this hearing, however, it seemed that technicalities and details were possibly of greater significance than the general consideration of the public’s right to know.

Because of the discrepant response by NOCVB’s legal counsel, the judge determined that the petition action was premature, meaning that she simply found that Mr. Winch should have waited for a longer period of time before filing his petition. Due to Winch’s filing of a subsequent amended petition, another hearing has been set for Friday, 5/25/13.

The fact that Judge Simms Julien did not dismiss this matter today or decide in favor of the NOCVB as the defendant in this action was encouraging — the NOCVB is not yet in the clear regarding this action.

Either legal counsel for NOCVB will make available any existing public records that will satisfy the request and fulfill their responsibility to demonstrate that perhaps some of the records were instead paid for with private (non-tax dollar) funding, or there’s a distinct possibility that this matter will be ruled in favor of Mr. Winch. The latter would establish that the NOCVB is, in fact, responsible to answer to public records requests in the future.

 

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