Louisiana appeals court affirms judgment against former D.A. Cannizzaro for his arbitrary and capricious failureto produce public records related to improper Article 66 subpoenas
NEW ORLEANS – The Louisiana Fourth Circuit Court of Appeal issued its opinion on March 17, 2021, affirming the ruling of Judge Ethel Julien of the Civil District Court for Orleans Parish that former District Attorney Leon Cannizzaro is liable to New Orleans attorney Emily Washington for the arbitrary and capricious failure to produce public records related to the use of Article 66 subpoenas. The opinion of the Fourth Circuit, authored by Judge Terri F. Love and joined by Judge Edwin A. Lombard and Judge Tiffany G. Chase, affirms the district court’s ruling in all respects. That judgment requires Cannizzaro to pay $51,450 in penalties under the Louisiana Public Records Act, and also to pay attorneys’ fees and expenses to be determined later. Penalties under the Act must be paid personally by the custodian of the public records, in this case Cannizzaro. The Office of the District Attorney, currently occupied by Jason Williams and which employed the attorneys who defended this appeal, will be liable for the attorneys’ fees and expenses incurred over the four years (and counting) of this litigation.
In its opinion, the Fourth Circuit reaffirmed significant aspects of Public Records Law jurisprudence. Williams’ Office argued that Cannizzaro was reasonable in denying Ms. Washington’s public records request, because their documents had been served on witnesses without being approved as lawful Art. 66 subpoenas. Williams’ Office contended that it was reasonable for Cannizzaro to purport that, although the documents being used by his office from 2014-17 were titled “subpoenas” and held out as such, they were actually “DA notifications,” and thus not responsive to Ms. Washington’s request.
The appellate court stated that a refusal to properly respond to a public records request is “arbitrary and capricious” when it reflects “willful and unreasoning action, absent consideration and in disregard of the facts and circumstances of the case.” Judge Love’s opinion pointed to evidence in the district court that the same First Assistant DA who was directly involved in preparing the office’s response to Ms. Washington in June 2015, had, just the year before, circulated a “Revised DA Subpoena” template for use by all staff. The new template specifically added language stating that the document was issued “pursuant to LSA-CCRP. art. 66” and that “A FINE OR IMPRISONMENT MAY BE IMPOSED FOR FAILURE TO OBEY THIS NOTICE.” Testimony also proved that Assistant District Attorneys used the templates in court proceedings, even seeking to have non-compliant witnesses jailed on material witness warrants for failing to appear at the D.A.’s office for interviews. The evidence also showed that the DA’s office made no search for these documents after receiving Ms. Washington’s May 2015 request.
According to Judge Love’s opinion, these facts “cast serious doubt on [Cannizzaro’s] claim of an honestly held belief that the ‘DA notification’ and ‘Article 66 Subpoena’ were two distinct forms, and, overall, these facts gravely undermine the assertion that [Cannizzaro] acted honestly and with due consideration in denying [Ms. Washington] access to requested records in both instances of [the DA’s] responses.”
The appellate court also rejected the District Attorney Office’s argument that, because Cannizzaro sent a first letter to Ms. Washington within days after her request, he was not liable for civil penalties under the Public Records Law. Judge Love responded that the substance of Cannizzaro’s responses “while timely, were of a willful and unreasoning nature, and were executed absent consideration for and in violation of La. R.S. 44:32.” Under that section, the appellate court ruled, Cannizzaro “was required within three days either to present the record requested, to separate the nonpublic portions of the record and make the remainder available for examination, or, in the alternative, to notify [Ms. Washington] of the reason it deemed the record not to be a public record.” Because Cannizzaro’s letter did none of these, the Court ruled he did not “properly respond” to Ms. Washington’s request.
Jim Craig, of the MacArthur Justice Center, who, together with Hannah Lommers-Johnson, represented their colleague Emily Washington in the case, stated, “The Fourth Circuit eviscerated the District Attorney’s attempt to weasel away from his obligations under the Public Records Law. The DA’s evasions and excuses made a mockery of the law. A custodian of public records is not allowed to play word games or concoct creative responses that block a requester like Ms. Washington from the records that she, as a member of the public, is entitled to see. These are the people’s records, not the private property of this DA or any other public official.”
Lommers-Johnson added, “It is puzzling and concerning that Jason Williams has continued to spend taxpayer money protecting Leon Cannizzaro’s reputation and pocketbook. We hope that this opinion closes the case and that Mr. Williams will refuse authorization for any further writs or appeals.”