NOCVB must respond to public records requests regarding public funds expenditures

May 24, 2013 by

Judge Ethel Simms Julien of the Civil District Court for the Parish of Orleans ruled today (in response to an amended petition filed last week by Justin L. Winch, a clerk employed by Smith Stag, LLC, regarding the matter of Winch v. Perry, et al.) that the New Orleans Convention and Visitors Bureau (NOCVB) “is subject to the Louisiana Public Records Act as to the expenditure of public funds.”

Although NOCVB legal counsel Alysson Mills attempted to argue on exception that there was “no cause for action,” that Winch’s public records requests were vague, “overly broad” and that he was not entitled to “most of the records he was requesting,” and alleged that last week’s hearing constituted a dismissal of the petition for the original public records request made by Winch, her arguments were ultimately unsuccessful.

She argued further that Winch’s original public records act was filed regarding his request made during May of 2012 and that today’s action was “untimely,” stating that, “Even though the Public Records Act does not have any statute of limitations or prescriptive period, it speaks in terms of days.” She contended further that the May 2012 public records request was satisfied, although Winch did not concur with this assessment.

Winch argued that while a portion of the prior petition was deemed “premature” regarding the May 2013 public records request, he noted that the petition, as a whole, was not dismissed and that his amendment regarding this matter was filed before the exception was granted.

The judge asked pointedly, “Did you receive documents in response to the request?” Winch replied simply, “No, ma’am.” (While it is a matter of record that he did receive a response to his May 23, 2013 request to review the NOCVB’s IRS Form 990s, that was a separate request and not the subject of this action.)

Winch characterized the responses he received from the NOCVB as follows: “We [the NOCVB] told you in 2012 ‘We’re not subject to it [the Public Records Act]; we’re not responding’ and as recently as last week, ‘We’re not responding.’ Now that you filed this lawsuit [and] you’re going to court, now we’re subject to it. So I need a declaratory judgment saying that they violated the Public Records Act. Period.”

Judge Julien noted, “When the court dismissed the [Writ of] Mandemus as being premature, that still left him with his petition for declaratory judgment, which he did amend.” NOCVB’s counsel attempted to argue that “Our intention was to dismiss the entire petition as premature,” to which the judge replied, “The entire petition is not premature.” (A “Writ of Mandemus” is an action that commands “an official to perform a ministerial act that the law recognizes as an absolute duty and not a matter for the official’s discretion”; it is used only when all other judicial remedies have failed. This action is different and separate from the court issuing a declaratory judgment.)

Winch argued, “The Public Records Act makes these remedies available to the public so that they don’t have to bear the burden of making records custodians compliant with the law. That’s why there’s no prescriptive period [time limitation] in the statute. The statute talks about ‘days’ as to the duties of the custodian — it says nothing about the duty of the requester. So there is an open violation of the statute sitting out there. Equity would dictate that that violation be recognized because a member of the public sought bring cause of action and there’s no prescriptive period… Equity would say let’s recognize this and let’s get a declaratory judgment so that we don’t have to go through all of this again, so that they [the NOCVB] have clear instructions from the court: ‘Once and for all, you are subject to the Public Records Act.'”

Judge Julien responded, “Unfortunately the Public Records Act does not have a prescriptive period. The court was of the opinion that the Convention and Visitor’s Bureau had actually provided documents and that the plaintiff [Winch] had simply not indicated that he was happy with the documents and waited until this year to file for the declaratory judgment. What I’m hearing now is that what he did receive were documents on the request for the IRS documents and not, in fact, the requested public records documents. I think the law is pretty clear that the Public Records Act does apply to the Convention and Visitor’s Bureau as it relates to the expenditure of public funds and I think that you have admitted such. I’m not sure whether all the documents he requested are public records… but as to those records that result from the expenditure of public funds, the public is entitled to those records.”

The document Judge Julien was referencing as to the admission that the NOCVB acknowledged its responsibility to respond to public records requests was a letter sent by the NOCVB’s legal counsel to Winch on May 21, 2013:

“Our response is informed by the fact that, as has been previously acknowledged, the CVB is a private, membership based, 501(c)(6) nonprofit corporation, not a ‘public body,’ and, accordingly, its records are subject to inspection only in connection with it receipt of public funds transferred under authority of the constitution and laws of Louisiana and then only to the extent of its records of the receipt and expenditure of such funds.”


Mills countered, “I think it would be a very bad thing if public bodies had to live in fear that they could be sued, you know, two, three, four, five years from now because they responded to the public records request but they’ll never know whether it was satisfactory.”

Judge Julien replied, “I believe that if, in fact, there was a response to the Public Records Act, the court would have responded differently. But what I’m getting here is that there was not a response except that ‘We’re not a public agency.'” Mills countered by describing Winch’s requests as vague or “blurry.” In response, Judge Julien noted, “Let me just say to you: it may be that this court would not find that they violated the Public Records Act given the question whether there was a clarification… You know, sometimes people submit a public records request, then they submit another one, and you don’t know if one is clarification of the other — I can understand that. But that doesn’t take away from the determination that the Convention and Visitors Bureau is subject to the Public Records Act as relates to the expenditure of public funds.”

Winch added, “That’s why I want the declaratory judgment saying that last year they violated the Public Records Act. Because the records were made available to me this year, and they should have made them available to me last year. They can’t sit out there and say, ‘We are not subject to the Public Records Act, Justin — turn around and go home.’ Those documents they made available this year? They should have been made available last year, your honor. They can’t sit out there and tell people, ‘We’re not subject to the Public Records Act.’ That was the violation — right there. They should have complied last year.”

The hearing concluded with Judge Julien ruling: “The court is ruling that the New Orleans Convention and Visitors Bureau is subject to the Public Records Act. It’s not clear to the court that there was a knowing violation. That’s the court’s ruling as to the expenditure of public funds. Have that judgment submitted to me; thank you. Have a good one!”

It is my understanding that judgments must be submitted within five days’ time of the ruling; the precedent-setting judgment could be available as soon as next week.

After leaving the courtroom, I asked Winch for his thoughts about Judge Julien’s ruling. He stated, “I think today was a victory for the public. From now on, the NOCVB won’t be able to deny Public Records Act requests.”

I asked, “Will people be able to cite this particular ruling?” Winch replied, “Definitely. I’ll pass this judgment out to anybody that wants information on the expenditure of public funds. They [the NOCVB] are up at the Senate right now asking for more money. This allows the public now to intelligently engage the Senate to say whether we want to give the NOCVB more money — because now we can see how they’re spending the tax dollars they already get.”

I added, “If I may be the first person to receive a copy of the judgment, I’d be very pleased.” Winch smiled and replied, “Definitely.”


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