March 25, 2015
OPINION 14-0163
90 – C – PUBLIC RECORDS

Mr. Edward J. Deano, Jr.
Attorney
City of Mandeville
895 Park Avenue
Mandeville, Louisiana 70448

La. R.S. 44:1 et seq.

Addresses various questions which have arisen in the City of
Mandeville upon receipt of a public records request for documents
created or received by elected officials and a member of an advisory
board on privately owned electronic devices.

Dear Mr. Deano:
Our office has received your request for an opinion submitted on behalf of the Mayor of
the City of Mandeville ("City"). Your letter references a public records request the City
received requesting the following items:
Item One: All City of Mandeville and personal Emails, faxes, or text
messages received by cell phones (City of Mandeville or personal phones
or fax machines) to or from all City of Mandeville Council members during
the time frame from July 1, 2012 to date concerning the City of Mandeville
budget analysis or the Mandeville Financial Oversight Committee (an
advisory committee established by ordinance by the City Council).
Item Two: All City of Mandeville and personal Emails, faxes, or text
messages received by cell phones (City of Mandeville or personal phones
or fax machines) to or from all City of Mandeville Council members during
the time frame of 6:30 pm to the conclusion of each Mandeville City
Council Meeting during the time frame of July 1, 2012 to present.
Item Three: All Emails, texts, faxes or correspondence from either City of
Mandeville, private or personal cell phones, fax machines and Email
accounts to or from all members of the City of Mandeville City Council to
or from all members of the Mandeville Financial Oversight Committee.
As you are aware, the right of access to public records is provided for by La. Const. art.
XII, section 3, which states that "[n]o person shall be denied the right to . . . examine
public documents, except in cases established by law." The Public Records Law, La.
R.S. 44:1 et seq., was enacted by the Louisiana legislature to protect and define the

 OPINION 14-0163
Mr. Edward J. Deano, Jr.
Page 2

constitutional right of access to public documents. The Louisiana Supreme Court has
instructed liberal construction of the Public Records Act, with any doubt being resolved
in favor of access.1 As directed by La. R.S. 44:31, providing access to public records is
a responsibility and duty of the appointive or elective office of a custodian and his
employees unless there is a specific provision of Title 44 or other law that exempts the
records from inspection.
Your request letter references that the City has adopted a “Code of Conduct for the City
of Mandeville,” a copy of which is included with your letter (hereinafter referred to as
“Code of Conduct”). Section C(5) of this Code of Conduct, titled City of Mandeville
Code of Conduct for Elected, Unclassified Employees and Appointed Personnel,
contains, in part, the instruction to “[d]irect all requests for documents under the Public
Records law to the City Attorney for response.”
Additionally, Section 4-02(c) of the Mandeville City Charter provides, "[t]he City Attorney
shall serve as the chief legal Advisor to the Mayor, Council and all Departments, Offices
and Agencies, shall represent the City in all legal proceedings and shall perform other
duties prescribed by this Charter or by Ordinance."
In light of the above, your letter asks our office to address seven questions which have
arisen regarding the responsibilities of responding to a public records request and the
fees which may be assessed to a requestor which have been incurred when fulfilling a
public records request.
Responding to a Public Records Request
Four of the questions in your request ask for an opinion on the following issues:
Under La. R.S. 44:1(A)(3), the custodian of the records requested is the
individual council members and member of the Mandeville Financial
Oversight Committee. Does Section C (5) of the Mandeville Code of
Conduct conflict with State law which sets out the duty of the custodian in
public records requests in La. R.S. 44:32 and 44:35?
If Section C (5) of the Mandeville Code of Conduct is not in conflict with
State law; then is it the duty or right of the City Attorney, in the instant
case, to review the correspondence between the City Officials listed in the
request to determine which items must be returned under the request or
are otherwise privileged?
What should the role of the City attorney be as “Chief Legal Advisor” as
referenced in Section 4-02(c) of the Charter?

1

Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984).

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Mr. Edward J. Deano, Jr.
Page 3

In an effort to determine the existence of, and completeness of the return
of the requested records, would it be appropriate for the City attorney to
review the data from telephone service providers of text messages
between the public officials? Would such review violate the right to
privacy of the official?
Your first inquiry asks whether the definition of custodian in La. R.S. 44:1(A)(3) conflicts
with the portion of the Code of Conduct directing that all requests for information
submitted under the Public Records Act be submitted to the city attorney for response.
In particular, your request references concern about how this direction may pose a
potential conflict with the duties of the custodian of records described by La. R.S. 44:32
and 44:35.
The Code of Conduct, which, by title, applies to elected officials, appointed personnel
and unclassified city employees, directs that all requests for access to documents made
pursuant to the Public Records Law be forwarded to the city attorney for response. The
Public Records Law defines the term “custodian” in La. R.S. 44:1(A)(3) as ". . . the
public official or head of any public body having custody or control of a public record, or
a representative specifically authorized by him to respond to requests to inspect any
such public records."
As referenced above, the elected or appointive office of a custodian has a responsibility
and duty to provide access to public records.2 Further, the burden of proving a public
record is not subject to inspection, copying or reproduction lies with the custodian.3 If
the custodian has a question as to whether the requested record is public, he or she
shall provide notice of the determination within three days, exclusive of Saturdays,
Sundays and legal public holidays, of receipt of the request. 4 The legislature has
provided for enforcement of the Public Records Law in La. R.S. 44:35, such statute
outlining when an action may be instituted and the relief which may be sought by a
requestor who feels the custodian has not complied with his or her obligations under the
Public Records Law.
Responding to a public records request requires the custodian to exercise his or her
discretion in determining what records are responsive to a particular request, the degree
of discretion required depends upon the nature of the request. In some requests, the
custodian and city attorney might agree on the identification of responsive records.
However, with respect to the request at issue in this opinion, which involves records
held by private individuals and likely includes a review of both public and non-public
records to segregate responsive records, it is conceivable that the elected official and
city attorney might not agree on a complete response to the request.

2

La. R.S. 44:31(A) and La. R.S. 44:32.
La. R.S. 44:31(C).
4
La. R.S. 44:32(D).
3

 OPINION 14-0163
Mr. Edward J. Deano, Jr.
Page 4

Correctly identifying who holds the final authority on what records are produced in
response to a public records request is significant, as the law attaches certain penalties
and relief which a requestor may seek if he or she believes a custodian has failed to
uphold his or her obligations under the Public Records Act.5 La. R.S. 44:35(E) states
that a custodian is personally liable for the payment of any costs or fees found to be
owed to a requestor under the enforcement provision of this law, “except where the
custodian has withheld or denied production of the requested record or records on
advice of the legal counsel representing the public body in which the office of such
custodian is located.” This language recognizes that the advice of counsel may play a
role in a custodian’s response to a request for access and, in turn, impact the
custodian’s liability in an improper response.
We do not view the instruction in the Code of Conduct to direct a request to the city
attorney for response as removing the discretional nature of an elected official in
concluding what records are produced in connection with a public records request to an
elected official, especially in an instance where a dispute exists between the elected
official and the city attorney. While the elected official’s reliance on the advice of the
city attorney might impact a court’s consideration of liability in an enforcement action
brought under title 44, the elected official ultimately has the responsibility to provide
appropriate responses to a public records request. The Code of Conduct does not
affect this obligation; rather, it simply provides for a procedure in responding to public
records requests. It is not uncommon for a public body to want an attorney involved in
responding to a public records request and ensuring that an appropriate response is
provided to a request for information.
The nature of the requested information cannot be ignored. The definition of a “public
record” is quite broad and, notably, does not contain a restriction that the record be
created or received by a public account or in a public building.6 Rather, as our office
has previously opined, the definition of a public record requires a content-driven
analysis for a connection between the record and the conduct of public business or the
functioning of a public body.7
5

La. R.S. 44:35.
A “public record” is defined by La. R.S. 44:1(A)(2)(a) as:
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
information contained in 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 under the
authority of the constitution or the laws of this state . . . except as otherwise provided in
this Chapter or the Constitution of Louisiana
7
La. Atty. Gen. Op. Nos. 13-0141 and 10-0272.
6

 OPINION 14-0163
Mr. Edward J. Deano, Jr.
Page 5

The request asks for three series of items: (1) e-mails, faxes, or text messages
submitted from or received by city owned or personally owned cell phones concerning
the budget analysis or the financial oversight committee (from July 1, 2012 until the date
of the request); (2) e-mails, faxes or text messages submitted from or received by city
owned or personally owned cell phones during council meetings (from July 1, 2012 until
the date of the request); and (3) e-mails, faxes, text messages or correspondence to or
from all members of the city council to or from all members of the financial oversight
committee. You have indicated that the city provides a monthly stipend to council
members when a council member utilizes his or her cell phone for conducting city
business and all but one of the council members have asserted to the city that they are
utilizing their phones for public business.8 Also relevant is the fact that the devices are
all owned by the individuals and are not property of the city. Thus, the city does not
have actual possession over the requested information and a response necessitates
affirmative action by the individual custodian of producing records to the city attorney for
response.
Some of your questions implicitly ask whether the Code of Conduct and Charter impose
a duty on the city attorney to perform this content-driven analysis, which is especially
relevant in a request where the records are located in a privately owned device likely
containing both non-public and public records. The city attorney can only review what
information is made available to him, and the degree of assistance desired from the city
attorney in making the content-driven analysis may vary with each elected official. The
Code of Conduct requires that public records requests be forwarded to the city attorney
for response and when public records are held on a privately owned device, this
requirement includes the obligation to, at a minimum, provide the responsive records.
However, this does not mean that an elected official should be required to make records
available to the city attorney from a privately owned device if he feels such records are
non-responsive to the request and purely private.
Items two and three of the request asks for broad series of messages: all sent or
received during a council meeting and then a blanket series of communications
identified by the senders or recipients. Both of these requests likely include information
which does not fall within the content-driven analysis for what constitutes a public
record.9 The role the city attorney plays in reviewing the potentially responsive records
could vary between elected officials. If the elected official wants to ensure a complete
response to the request is made and wishes to rely on the city attorney’s experience,
research and knowledge in making such a determination, he may wish to forward all of
8

The one council member that does not currently receive a stipend ceased receiving the stipend in
August 2014.
9
Every record created or received by a council member during a council meeting is not necessarily a
public record. The definition of a public record in La. R.S. 44:1(A)(2)(a) discusses the transaction of
public business. Similarly, identifying a request by senders or recipients, even if those individuals have a
public relationship, does not automatically lead to a conclusion that every responsive record will concern
public business.

 OPINION 14-0163
Mr. Edward J. Deano, Jr.
Page 6

the potentially responsive records to the city attorney for review. However, if the elected
official wishes to perform the review himself and provide only the documents he deems
responsive to the request, we do not think the Code of Conduct requires that an elected
official utilize the opinion or advice of counsel in making such a conclusion. Rather, the
Code of Conduct requires the custodian to forward the responsive records to the city
attorney so that the city attorney may respond to the requestor.
We now specifically address the four questions earlier identified.
For the reasons described above, it is the opinion of this office that the Code of Conduct
does not conflict with the duty of the custodian described in La. R.S. 44:32 and La. R.S.
44:35.10
Your second question asks whether it is the duty or right of the city attorney to review
the correspondence to determine which records are subject to production and your third
question asks about the role of city attorney as chief legal advisor.11 While it may be
prudent to have the city attorney review all of the potentially responsive
correspondence, we do not believe this is a duty or right of the city attorney, especially
in any instance where an elected official does not wish for such a review to proceed by
the city attorney and the records are held on personal, rather than public, devices.
Thus, the role of the city attorney as chief legal advisor with respect to a public records
request received by an elected official may depend upon the advice requested or
deemed necessary by the clients. From the Code of Conduct, it is clear that responses
to requests are intended to come from the city attorney, and the city attorney will
provide the advice deemed appropriate, but this advice is necessarily limited by the
information made available to the city attorney.
Your last question related to this topic concerns whether it is appropriate for the city
attorney to review the data from telephone service providers to determine the
completeness of the proposed response. Further, you ask whether such review would
violate the right to privacy of the official. As discussed above, this review is only
required by the city attorney if the client authorizes and desires such review to occur. If
the elected official chooses not to rely upon the advice of the city attorney, then the city
attorney may request that the elected official assert in writing that a complete review
and response has been made of the requested records in the event the accuracy of the
response is later challenged.12
10

Again acknowledging that La. R.S. 44:35(E) states a custodian is personally liable for the payment of
any costs or fees found to be owed to a requestor under this statute, “except where the custodian has
withheld or denied production of the requested record or records on advice of the legal counsel
representing the public body in which the office of such custodian is located.”
11
Considering the nature of the other questions in your opinion request, we presume this question is
limited to the role in responding to a request for access to public records.
12
However, considering that the request concerns records held by multiple elected officials (and one
appointed member of a board), if some elected officials wish for the city attorney to perform a review and
others do not, it is advisable for anyone not utilizing the city attorney for review to still coordinate with the

 OPINION 14-0163
Mr. Edward J. Deano, Jr.
Page 7

Fees Associated with Fulfilling a Public Records Request
Your remaining three questions concern the assessment of fees incurred by a public
body in fulfilling a request, and specifically ask, as follows:
In the event the records have not been segregated to distinguish personal
and public correspondence, can the official be paid for the time spent
retrieving the responsive documents?
Who is responsible for the extraordinary expenses, such as payments to
service providers to retrieve electronic documents? May the City require a
deposit for the payment of such services?
In the event that the custodian of the public record is a councilman or
member of an advisory board for which there are no “regular office or
working hours” as provided by La. R.S. 44:32 and there are no funds
appropriated for clerical staff required to respond to a public records
request, who should bear the expense of responding to the public records
request?
As these questions concern the costs which may be assessed against a requestor in
responding to and/or fulfilling a public records request, we examine the various
elements contained in the fees statute of the Public Records Law, La. R.S. 44:32.
When examination is authorized by the custodian to occur after regular office hours, the
individuals representing the custodian are entitled to reasonable compensation. La.
R.S. 44:32(A).13
city attorney on the time frame in which the city attorney intends to make the records he is reviewing
available to the requestor. Further, any elected official performing his or her own review may wish to
request that he be notified of any conflicts in the records he or she provides to the city attorney to produce
to the requestor as responsive and the records held by other custodians identified by the city attorney as
responsive.
13
La. R.S. 44:32(A) provides:
The custodian shall present any public record to any person of the age of majority who so
requests. The custodian shall make no inquiry of any person who applies for a public
record, except an inquiry as to the age and identification of the person and may require
the person to sign a register and shall not review, examine or scrutinize any copy,
photograph, or memoranda in the possession of any such person; and shall extend to the
person all reasonable comfort and facility for the full exercise of the right granted by this
Chapter; provided that nothing herein contained shall prevent the custodian from
maintaining such vigilance as is required to prevent alteration of any record while it is
being examined; and provided further, that examinations of records under the authority of
this Section must be conducted during regular office or working hours, unless the
custodian shall authorize examination of records in other than regular office or working
hours. In this event the persons designated to represent the custodian during such
examination shall be entitled to reasonable compensation to be paid to them by the

 OPINION 14-0163
Mr. Edward J. Deano, Jr.
Page 8

La. R.S. 44:32(B) recognizes the authority of the custodian to redact or separate
nonpublic material from a record in responding to a request; however, this provision
does not authorize the imposition of a fee for doing so, providing, "[i]f any record
contains material which is not a public record, the custodian may separate the nonpublic
record and make the public record available for examination."
The first two subsections of La. R.S. 44:32(C) address the fees which may be charged
when a requestor seeks copies of public records.14
La. R.S. 44:32(C)(3) discusses the ability to charge fees to requestors outside of the
specific authorizations provided for in the Public Records Law, as well as the authority
to charge for the time spent determining whether a record is subject to disclosure,
stating, "[n]o fee shall be charged to any person to examine or review any public
records, except as provided in this Section, and no fee shall be charged for examination
or review to determine if a record is subject to disclosure, except as may be determined
by a court of competent jurisdiction."
You ask whether the official can be paid for the time spent retrieving the responsive
documents, and more specifically, the time spent segregating public and non-public
records. As outlined above, La. R.S. 44:32(B) states that if a record contains material
which is not public, the non-public information may be segregated from the response;
however, La. R.S. 44:32 does not specifically authorize a fee to be collected in this
scenario. If such segregation takes an extraordinary amount of time to compile, then
public body having custody of such record, out of funds provided in advance by the
person examining such record in other than regular office or working hours.
14
La. R.S. 44:32(C) provides, in pertinent part:
(1)(a) For all public records, except public records of state agencies, it shall be the duty
of the custodian of such public records to provide copies to persons so requesting. The
custodian may establish and collect reasonable fees for making copies of public
records. Copies of records may be furnished without charge or at a reduced charge to
indigent citizens of this state.
...
(d) Any person, as provided for in R.S. 44:31, may request a copy or reproduction of any
public record and it shall be the duty of the custodian to provide such copy or
reproduction to the person so requesting.
(2) For all public records of state agencies, it shall be the duty of the custodian of such
records to provide copies to persons so requesting. Fees for such copies shall be
charged according to the uniform fee schedule adopted by the commissioner of
administration, as provided by R.S. 39:241.
Copies shall be provided at fees according to the schedule, except for copies of public
records the fees for the reproduction of which are otherwise fixed by law. Copies of
records may be furnished without charge or at a reduced charge to indigent citizens of
this state or the persons whose use of such copies, as determined by the custodian, will
be limited to a public purpose, including but not limited to use in a hearing before any
governmental regulatory commission.

 OPINION 14-0163
Mr. Edward J. Deano, Jr.
Page 9

the elected official may wish to consult with the city attorney to determine whether it is
appropriate for the city to seek a judicial determination requesting that a fee be charged
to the requestor for the segregation.15
You also ask who is responsible for any extraordinary expenses, such as payments to
service providers, to retrieve electronic documents. Further, you ask whether the city
may require a deposit for the payment of such services. Again, we direct you to La.
R.S. 44:32(C)(3), which is the available method of obtaining relief if a custodian incurs
extraordinary expenses in gathering materials responsive to a request. If this relief is
requested from a court of competent jurisdiction, the request to require a deposit should
be included.
However, we again note that, as described above, the duties and obligations of the
custodian of public records rest with the elected and appointed officials who created and
received the records at issue. 16 The Public Records Law, specifically, La. R.S.
44:36(A), requires that custodians exercise “diligence and care” in preserving public
records in accordance with a records retention schedule developed and approved by
the Secretary of State.17 In the event a formal records retention schedule has not been
adopted, public records must be preserved and maintained for a period of at least three
15

The clear language of La. R.S. 44:32(C)(3) states that no fee shall be charged to a person to review or
examine a record, except as provided, and that no fee shall be charged to determine if a record is subject
to disclosure, except as may be determined by a court of competent jurisdiction.
16
The nature of the questions raised in your opinion request implies there may be potential records
retention issues; however, whether officials have properly retained any public records is a fact specific
inquiry that this office provides no opinion on except to comment that there is a lack of jurisprudence in
Louisiana interpreting the obligations of a custodian in preserving text messages which are, by design,
somewhat transient in their nature. While acknowledging that the definition of “public records” in La. R.S.
44:1 defines a record by its content rather than the medium in which it exists, we also recognize that the
application of this definition to electronic records which may not be automatically stored and are, in many
cases, created on devices owned by individuals rather than public entities, may present unique obstacles
for public bodies complying with retention obligations.
17
La. R.S. 44:36(A) provides:
All persons and public bodies having custody or control of any public record, other than
conveyance, probate, mortgage, or other permanent records required by existing law to
be kept for all time, shall exercise diligence and care in preserving the public record for
the period or periods of time specified for such public records in formal records retention
schedules developed and approved by the state archivist and director of the division of
archives, records management, and history of the Department of State. However, in all
instances in which a formal retention schedule has not been executed, such public
records shall be preserved and maintained for a period of at least three years from the
date on which the public record was made. However, where copies of an original record
exist, the original alone shall be kept; when only duplicate copies of a record exist, only
one copy of the duplicate copies shall be required to be kept. Where an appropriate form
of the microphotographic process has been utilized to record, file, and otherwise preserve
such public records with microforms produced in compliance with the provisions of R.S.
44:415, the microforms shall be deemed originals in themselves, as provided by R.S.
44:39(B), and disposition of original documents which have been microphotographically
preserved and of duplicates and other copies thereof shall proceed as provided in R.S.
44:411.

 OPINION 14-0163
Mr. Edward J. Deano, Jr.
Page 10

years from the date in which the record was created.18 Elected officials should be made
aware of the obligations which arise when he or she conducts business through a
personally owned electronic device.
Your last question asks who should bear the expense of responding to a public records
request when the custodian is a council member or member of an advisory board for
which there are no “regular office or working hours” as provided by La. R.S. 44:32 and
there are no funds appropriated for clerical staff required to respond to public records
requests. The reference to “regular office or working hours” in La. R.S. 44:32 refers to
the authority to charge a fee for an in-person examination of records when examination
is authorized by the custodian to occur outside of regular office or working hours. The
Code of Conduct directs that all responses to public records requests are to come from
the city attorney. Even if an elected official or member of an advisory board does not
wish to use the services of the city attorney in determining what records are responsive
to the request, he or she must still forward the potentially responsive records to the city
attorney so that he may provide the requestor with a response, as directed by the Code
of Conduct.19 Therefore, actual examination should occur through the city attorney’s
office, whether the examination is done in person or by making available to the
requestor copies of the requested records. However, if this question was referring to
costs incurred in gathering the responsive records rather than the actual inspection, we
refer you to the provisions of La. R.S. 44:32(C)(3) discussed above.
We hope that this opinion has adequately addressed the legal issues you have raised.
If our office can be of any further assistance, please do not hesitate to contact us.
With best regards,
JAMES D. “BUDDY” CALDWELL
ATTORNEY GENERAL

BY:___________________________
Emalie A. Boyce
Assistant Attorney General
JDC: EAB

18

Id.
The facts do not give sufficient information concerning the advisory board member to opine as to
whether he is required to comply with the Code of Conduct. However, given the fact that the Code of
Conduct envisions the city attorney as the person responding to public records requests on behalf of the
city, and there is no suggestion that this individual objects to this, we provide no opinion on whether the
private citizen is subject to the Code of Conduct.

19

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Mr. Edward J. Deano, Jr.
Page 11

SYLLABUS
OPINION 14-0163
90 – C – PUBLIC RECORDS
La. R.S. 44:1 et seq.

Addresses various questions which have arisen in response to the receipt of a public
records request for documents created or received by elected officials and a member of
an advisory board on privately owned electronic devices.

Mr. Edward J. Deano, Jr.
Attorney
City of Mandeville
895 Park Avenue
Mandeville, Louisiana 70448

DATE ASSIGNED:
DATE RELEASED: March 25, 2015
Emalie A. Boyce
Assistant Attorney General