SUNSHINE WEEK – CLERKS OF COURT

The Clerk of Court is a constitutional officer pursuant to Louisiana Constitution Article 5, Section 28 operating in each parish and elected by the voters. He is “ex officio notary public”, “parish recorder of conveyances, mortgages, and other acts” and shall have other duties and powers as provided by law.

During the course of this project one person remarked ‘Clerks of Court are like the Mafia!’ That statement could easily be interpreted in several different ways. Initially, it was perceived to mean that Clerks can be intimidating, threatening, and willing to do whatever it takes to stay in power. For the purposes of this exercise that interpretation of the statement didn’t ring true. In fact, most Clerks and their employees are very polite and helpful.

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Perhaps the meaning meant to be conveyed was much softer. The methods which have been employed in the operation of Clerks offices for decades are dying, much like the Mafia. Many Clerks are still adapting to and struggling with the technological changes that have been introduced into the realm of public records. Louisiana seems to be lagging other states which have instituted statewide electronic access to the records of each Clerk through a single system. If not for the constitutional mandate for the existence of a Clerk in each of the sixty-four parishes (two in Orleans) one can only wonder if consolidation and/or elimination of some offices would not have occurred.

Or maybe the phrase was meant to communicate a comparison between the organizational structure of the Mafia and Clerks offices. The Mafia historically being organized amongst several families (groups) with orders generally coming from a central source operating in the shadows. After all, in response to our request to the various Clerk of Courts we received a virtually identical answer from each office leading to the belief that the boiler plate response originated from a central source (other than the Clerk), but was carried out by each Clerk.

The more likely meaning the adage was intended to convey is that Clerks of Court are very protective of their “turf”, which also could be said true for the Mafia. It is undeniable that most, if not all Clerks, seem to closely safeguard “public records” as their personal proprietary property which is wielded to fund their office. A threat upon fettered access to the records is a threat at the Clerks funding source. The Clerks, through their agents, have been able to enact protective legislation to guard their honey hole.

Despite the courts of the State, including the Supreme Court, having consistently held that the right afforded to the public in the constitution and Public Records Law include the right to make copies of public record with their own equipment without paying a fee to the custodian, the Clerks of Courts have been able to carve out an exception to protect their interests, adverse to the rights of the public.

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In 1990 the Third Circuit allowed an abstractor to install a copy machine to enforce his right to copy public records. Louisiana Revised Statute 44:32 was subsequently amended in 1995 to add Subparagraph (C)(1)(c), which states. “The use or placement of mechanical reproduction, microphotographic reproduction, or any other such imaging, reproduction, or photocopying equipment within the offices of the clerk of court by any person described in R.S. 44:31 is prohibited unless ordered by a court of competent jurisdiction.” At the time it was not the intent of the Louisiana Legislature to prohibit hand-held or portable scanners within the offices of the clerk of court. Thus, after this amendment, the right of a requestor to inspect and make copies continued to be guaranteed by Louisiana’s Public Records Act.

When this bill went before the House Committee on Governmental Affairs on April 20, 1995, the committee minutes show not only the reasons given to the committee for the proposed amendment, but also the concerns of some committee members about the breadth of the language:

House Bill No. 2107 prohibits placement of certain mechanical reproduction equipment in the officers of clerks of court. Representative Dimos presented the bill with the assistance of Ms. Debbie Hudnall, Louisiana Clerks of Court Association.

Ms. Hudnall explained that the bill prohibits the placement of equipment other than that belonging to the clerk of court’s office. She assured the committee that the bill does not deny complete and unrestricted access to the public records. Representative Green agreed with Representative Bowler’s concerns, noting that while the advance of technology might make it easier to bring small or portable duplicating equipment to an office, including microfilm cameras or computer scanners, such equipment would be prohibited under the provisions of the Bill. Ms. Hudnall disagreed that these would be prohibited since they are not permanently placed in the office. Representative Green added that the language of the bill is broader than necessary to fix the problem as described.

A decade later Act 193 of 2005 was passed by the Legislature, became law and eliminated the right of the public to use hand-held scanning devices within the offices of the Clerks of Court contrary to the situation the Louisiana Clerks of Court Association previously reported. Since that time people have been forcefully dragged out of Clerks of Courts offices for the mere act of taking a photograph of a public document. Now that is Mafia style tactics!

CLERK OF COURTS: (Louisiana Constitution Article 5, Section 28)

The following seven request were sent to each Clerk of Court in the state:

• Listing of all new civil matters filed on January 3, 2022.
• All Criminal and Civil Court Docket sheets for the month of January 2022.
• Individual appointment calendar of the Clerk of Court for the period of time of January 1, 2022 through January 31, 2022, including but not limited to: traditional hard copy calendars and electronically stored information on cell phone(s), computer(s) and/or other electronic devices.
• Expenses reports or listing of expense reimbursements for Clerk of Court for the period of time of January 1, 2022 through January 31, 2022 OR IN THE ALTERNATIVE; any and all documents of expense reimbursements for Clerk of Court for the period of time of January 1, 2022 through January 31, 2022.
• Compensation received by the Clerk of Court for the calendar year of January 1, 2021 through December 31, 2021, including but not limited to salary, salary augmentation, stipends, vehicle subsidies, cell phone subsidies, insurance benefits, etc.
• Any written policy and procedure concerning the use of hand-held or portable scanning equipment within the Clerk’s Office.
• List of all Deputy Clerks and other individuals employed by your office.

The Clerks of Court were then graded based on ten objective factors with each being worth one point, for a maximum score of ten points. Below is how the governing bodies ranked after the passage of at least thirty days from the date of the request.

THE RESULTS:

Have the public bodies made information regarding how to request public records readily available and easy to find (i.e. website, etc.)?

Did the public bodies acknowledge the receipt of the public records request or provide any exemptions within three days?

Did the public bodies produce the records for inspection or provide an estimate of time reasonably necessary for production within five days of the request?

Did the public bodies accept the e-mailed requests without a demand that it be presented on a particular form, in a particular format or submitted in an alternative fashion?

Did the public bodies accept the request without demanding that a state issued identification card be provided?

Did the public bodies refrain from inquiring about the purpose of the requests?

Did the public bodies respond without employing an attorney to respond?

Were the records or information made available free of charge and/or without a request for a deposit?

Were the records or information made available by electronic means or did the custodian indicate the records could be copied using a portable scanning device?

Were the records provided by the public bodies responsive to the requests and of good quality?