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LOUISIANA CAPITAL                                                                *                    NO. 2010-CA-0733
ASSISTANCE CENTER
                                                                                 *
VERSUS                                                                                                COURT OF APPEAL
*
WARREN RILEY, IN HIS                                                             FOURTH CIRCUIT
OFFICIAL CAPACITY AS                                                             *
CHIEF OF THE NEW                                                                 STATE OF LOUISIANA
ORLEANS POLICE                                                                   *
DEPARTMENT AND
CUSTODIAN OF PUBLIC
RECORDS
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2009-12298, DIVISION “J”
Honorable James M. Williams, Judge, Pro Tempore
Judge Edwin A. Lombard
(Court composed of Judge Patricia Rivet Murray, Judge Dennis R. Bagneris, Sr.,
Judge Edwin A. Lombard)
Anna VanCleave
636 Baronne Street
New Orleans, LA 70113
COUNSEL FOR PLAINTIFF/APPELLEE
Leon A. Cannizzaro, Jr.
District Attorney
Brad Scott
Assistant District Attorney
619 South White Street
New Orleans, LA   70119
COUNSEL FOR INTERVENOR/APPELLANT, ORLEANS PARISH
DISTRICT ATTORNEY’S OFFICE
AFFIRMED




This appeal is from the trial court judgment granting a petition for a writ of
mandamus filed by the Louisiana Capital Assistance Center (LCAC) requesting
records related to cases involving the arrest of Michael Anderson.  After review of
the record in light of the arguments of the parties and applicable law, we affirm the
judgment of the trial court.
Relevant Facts
In October 2009, an investigator for the LCAC requested records from the
NOPD pertaining to three cases, two from 2005 and one from 2006, involving the
arrest of Michael Anderson.    After the NOPD failed to comply with the request,
the LCAC filed a petition (naming Warren Riley, in his official capacity as Chief
of the New Orleans Police Department (NOPD) and Custodian of Public Records,
as defendant) under the La. Public Records Act, seeking a writ of mandamus for
production of the requested documents.  The Office of District Attorney (DA)
entered into the proceedings as an intervenor.  Conceding that the records in the
earlier 2005 case were public because the prescription period had expired, the DA
argued at the contradictory hearing in February 2009 that records pertaining to the
other two cases were exempt from disclosure under La. Rev. Stat. 44:3(A)(1)
because the litigation period had not prescribed and it was the policy of the DA




that litigation could be                                                                 “reasonably anticipated” in any case in which the litigation
period had not prescribed.
On March 24, 2010, the trial court rendered a written judgment, granting the
LCAC’s petition for a writ of mandamus and ordering the NOPD to disclose the
records relating to Anderson’s 2005 and 2006 arrest.  On April 28, 2010, a petition
for a suspensive appeal was filed and granted.
Discussion
The right of the public to access public records is a fundamental right
guaranteed by the Louisiana Constitution.  La. Const. Art. 12 § 3.  There is no
dispute that the records at issue in this case are public records as defined in La.
Rev. Stat. 44:1(A)(2)(a).  Rather, the only issue is whether the records are exempt
from disclosure under La. Rev. Stat. 44:3(A)(1) which specifically exempts
disclosure of “[r]ecords pertaining to pending criminal litigation or any criminal
litigation which can be reasonably anticipated . . .                                     .”  It has long been established
that determination of whether a particular record falls within the exemption
provided by La. Rev. Stat. 44:3(A)(1) must be made on a case-by-case basis and
that, in making this determination, the law “requires more than a judicial
acceptance of an assertion of privilege by the prosecutor.”  Cormier v. In re:
Public Records Request of DiGiulio, 553 So.2d 806, 807 (La. 1989); Conella v.
Johnson, 345 So.2d 498, 501 (La. 1977).  Accordingly, the determination of
whether criminal litigation is reasonably anticipated within the meaning of La.
Rev. Stat. 44:3 is made within the context of a contradictory hearing to provide an
opportunity for the presentation of evidence and cross-examination of witnesses
because “[t]he determination must rest on more than an assertion by the
prosecutorial authority that criminal litigation is or is not reasonably anticipated.”
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In re Matter Under Investigation, 2007-1853, p. 29 (La. 7/1/09), 15 So.3d 972,
992.  Accordingly, the determination of whether criminal litigation is reasonably
anticipated is guided by objective factors such as (1) whether the litigation period
has prescribed; (2) the temporal and procedural posture of each case; (3) whether
criminal litigation has been finally adjudicated or otherwise settled; (4) the
assertion of prosecutorial authority as to its intent (or lack thereof) to initiate
criminal litigation; (5) whether the prosecutorial authority has taken objective,
positive and verifiable steps to preserve its ability to initiate criminal investigation,
including but not limited to, preserving evidence, maintaining contact with
witnesses, and continuing an investigation; (6) the time it would take the
prosecutor to appropriately investigate and prosecute the offense at issue; (7) the
inherent authority of the prosecutorial authority under La. Code Crim. Proc. art. 61
to determine whom, when, and how he will prosecute; (8) the severity of the crime;
(9) the availability of witnesses, victims, and defendants; (10) the spoliation of
evidence; (11) the reasonable likelihood that a missing witness or absconded
defendant might be found; and (12) the reasonable likelihood that additional
witnesses might be willing to come forward with the passage of time.  Id. at 30-31.
The burden of proving that a record is not subject to inspection, copying, or
reproduction by a member of the public rests with the custodian.  Id. at 31 (citing
La. Rev. Stat. 44:31(3)).
As observed by the Louisiana Supreme Court, “[w]ere the determination
based solely on the testimony of the prosecutor, inconsistencies and caprice could
enter the determination of whether the Public Records Act requires disclosure of
the records at issue.”  Id. at 30.  Inexplicably, however, the only evidence offered
by the DA at the contradictory hearing in this matter was testimony that it is the
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policy of the Orleans Parish District Attorney that criminal litigation could be
reasonably anticipated in any case where the litigation period has not legally
prescribed.  Even more inexplicably, the only argument offered by the Orleans
Parish District Attorney on appeal is that the Louisiana Supreme Court wrongly
decided In re Matter Under Investigation and, in so doing, has impermissibly
infringed upon its constitutional authority to make its own determination when
records should be disclosed under the Public Records Act.
Conclusion
It is axiomatic that lower courts adhere to the precedential authority of
higher courts and this court may not overturn a decision of the Louisiana Supreme
Court.  In this case, the DA abdicated its responsibility to come forward with any
evidence to sustain its burden of proving that the records at issue were not subject
to disclosure under the Public Records Act.  The trial court did not err in following
the guidelines enunciated by the Louisiana Supreme Court and, accordingly, we
affirm the judgment of the trial court.
AFFIRMED
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