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Monday, March 9, 2009

Judge Ledet Pounds Nagin, Fields in WWL-TV Public Records Ruling

Posted By on Mon, Mar 9, 2009 at 10:29 PM

Civil District Court Judge Rose Ledet slapped Mayor Ray Nagin and City Attorney Penya Moses-Fields with the maximum penalties in WWL-TV’s suit against the mayor and the city attorney over the station’s public records lawsuit. The judge ruled that Nagin, Moses-Fields and the administration acted in a manner that was “not only unreasonable and arbitrary, but in flagrant violation of the law they have been sworn to uphold.”  She also awarded the station attorney’s fees “in an amount to be agreed upon by the parties or set at a hearing upon application by Plaintiff.”


WWL reporter Lee Zurik sued Nagin and Moses-Fields under the Louisiana Public Records Act to get copies of Nagin’s emails and calendar for 2008, and Communications Director Ceeon Quiett’s emails for the same period. Nagin, through the City Attorney’s Office, answered that most of his calendar and emails had been deleted because the city’s computer server on which those records were stored was overloaded. Nagin also claimed “executive privilege” with regard to massive sections of the emails and calendar entries that were retrievable. When ordered to turn over the calendar, Nagin’s staff “redacted” or blacked out huge portions of those records. Ledet didn’t buy those arguments and ordered most of the redacted portions turned over to WWL.


In her judgment, Ledet assessed the city the maximum penalty of $100 per day from Dec. 3, 2008, to January 28, 2009 (excluding weekends and legal holidays), for Nagin’s refusal to respond to the public records requests concerning his e-mails; and $100 per day from Jan. 4 to Feb. 18 for refusal to respond to requests for his 2008 appointment calendar. She also assessed the city for the station’s legal fees — as allowed under the Louisiana Public Records Act.


Worse yet for Nagin, the judge held the mayor and Moses-Fields personally liable “in solido” with the city for those penalties. That means Zurik can pursue Nagin and/or Moses-Fields individually to collect the $100-per-day fines, which already run into the thousands of dollars.


The Louisiana Public Records Act specifically allows public officials to be held personally responsible for fines in cases such as this — where a court deems their failure to produce public records to be “unreasonable and arbitrary” — as a deterrent to public officials ignoring public records requests. Typically, those who get judgments against the City of New Orleans have to wait years — up to a decade, in some instances — to collect, and often it’s just pennies on the dollar. Not this time, apparently.


It will be interesting to see if Zurik/WWL pursues Nagin personally for the fines — and if Nagin will try to contest those efforts. It also will be interesting to see whether the station and the city/Nagin can agree upon the size of WWL/Zurik’s legal fees in the matter.


Ledet issued her ruling in the form of three separate judgments and one “Reasons for Judgment.” In her reasons, Ledet noted that the penalties were appropriate because there was no showing that Nagin or Moses-Fields contested the public nature of the request or asked for an exception. She found instead that “the mayor and the city attorney avoided their responsibility to comply with the public records request by simply ignoring Mr. Zurik’s request until almost 60 days later.”


Equally important, Ledet ruled that Nagin’s failure to preserve, maintain and produce his emails and calendar to Zurik “violates the Louisiana Public Records Law.” She specifically ordered that “all calendars and email to or from” Nagin and all city officials with whom the mayor typically communicates “shall be preserved and maintained for a period of at least three years form the date of creation.” She further ordered the city’s IT director to provide a “verified statement” (read: sworn under oath) stating whether Nagin’s 2008 calendar and emails no longer exist or can be retrieved — and that “all available media, including but not limited to Mayor Nagin’s and Ceeon Quiett’s Blackberry, laptop and desktop computers and the city’s back-up tapes have been searched,” and the extent of the search for Nagin’s emails and calendar and Quiett’s emails. She also ordered Nagin and Quiett to search their personal and home computers for the same data — and ordered each of them to produce a “verified statement” if none of the records can be found. If either Nagin or Quiett lie in their respective “verified statements,” they can be held criminally liable for perjury.


She also ordered Nagin and Quiett, if the records cannot be retrieved, to certify in writing (1) that the public records are not in their possession, (2) the “detailed reasons for the absence” of those records, (3) the location of the records, (4) the person who has custody of the records, (5) the manner and “exact times” at which the records were taken from their custody, and (6) “ample and detailed answers” to Zurik’s inquiries related to his lawsuit.


Furthermore, Ledet ordered Nagin to answer under oath interrogatories propounded to him by WWL.


Bottom Line: The judge is not buying Nagin’s “the dog ate my homework” excuse for deletion of the emails and calendar. Instead, she is insisting that a thorough search be made to retrieve them — and that specific reasons and explanations be provided under oath if they cannot be retrieved.


For good measure, the judge also ordered Nagin, Quiett, Moses-Field and the City to start obeying the Louisiana Public Records Law — and to enlarge the capacity of the city’s computer servers in order to comply with the law’s requirement for preserving and maintaining public records. She also ordered Nagin, Moses-Fields and Quiett not to destroy any calendars or correspondence by the mayor — “whether written, electronic or otherwise.”


Think Nagin may finally get the message that he is not above the law?


We’ll see.

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