PATRICK LACOUR v. CITY OF ALEXANDRIA ET AL (2025)

Patrick Lacour appeals a trial court judgment dismissing a petition for writ of mandamus he filed seeking the production of a public record from the City of Alexandria under the Louisiana Public Records Act. For the following reasons, we affirm the judgment of the trial court.

FACTS

On August 14, 2024, Patrick Lacour sent a public records request to Johathan Goins, in his official capacity as custodian of records for the City of Alexandria and city attorney. The request was as follows:

This is a public records request to examine the most recent copy of any report that the city uses to monitor delinquent utility accounts. While I do not know the exact name of the report(s), I am requesting to examine the most recent copy of any report that is generated either electronically or in print and that lists unpaid and or past due amounts of customer utility accounts, preferably any report that shows an aging of the unpaid amounts by, for example, 30 days, 60 days, 90 days, over 90 days etc. My request includes the most recent copy of any report that the city uses to post cut-off notices such as the one featured in KALB's 8/13/24 report that the Capital One Building owner (reported as Darrell David Smith), was $14,119.58 past due.

On August 19, 2024, Mr. Lacour sent an additional email stating that three days had passed since he made the request, and that he had received no response. Mr. Goins sent a reply email that same day that they were gathering the information and should have it to him by the close of business on August 23, 2024. On August 20, 2024, Carroll Devillier with Breazeale, Sachse & Wilson, L.L.P., the law firm representing the City, sent an email to Mr. Lacour stating that the City reviewed the request and that it was not in possession of records responsive to his request. Mr. Lacour followed with another email on September 17, 2024, claiming that the City was concealing the record from him and claiming he was going to ask the court for $100 a day for a violation of his rights. Among other remarks, he made a request for a third time “to have access to examine the most recent version of the Utility Customer Service Office's ‘Aging Report’ or ‘Delinquent Aging Report.’ ”

On September 20, 2024, Karoly Surgent, customer service manager in the customer field services department, sent a report to Mr. Lacour based on his request. That same day, Mr. Goins sent an email to Mr. Lacour requesting the return of the document stating that was not responsive to his public records request.

On September 27, 2024, Mr. Lacour filed a petition for mandamus naming the City, Mr. Goins and Ms. Surgent as defendants. He requested production of all the public records requested and an award of attorney fees, damages, sanctions, and costs for the denial of the public records.

Defendants filed exceptions of no cause and no right of action. On December 17, 2024, the trial court heard both the exceptions and the petition for mandamus. The trial court granted the exception of no cause of action in favor of Ms. Surgent but denied it as to the City and Mr. Goins. The exception of no right of action was denied as to all Defendants. After hearing testimony, the trial court denied Mr. Lacour's petition for writ of mandamus and dismissed it with prejudice. Mr. Lacour then filed the present appeal.

MOTION TO STRIKE

We must first address a motion to strike filed by Defendants. They ask this court to strike certain offensive, discourteous, scandalous, and irrelevant material contained in Mr. Lacour's pro se brief and in the record.

Uniform Rules of Court, Courts of Appeal, Rule 2-12.2(B) says the language in legal briefs must be “courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution.” Violations of this rule can result in the brief being returned or the author being held in contempt of court. Id.

Louisiana Code of Civil Procedure Article 964 authorizes courts to strike “any redundant, immaterial, impertinent, or scandalous matter” from pleadings. The jurisprudence states:

Whether a motion to strike should be granted pursuant to Article 964 rests in the sound discretion of the trial court and is reviewed under the abuse of discretion standard. Cole v. Cole, 2018-0523 (La.App. 1 Cir. 9/21/18), 264 So.3d 537, 544. Motions to strike are disfavored and infrequently granted․ However, a motion to strike is proper if it can be shown that the allegations being challenged are so unrelated to a plaintiff's claims as to be unworthy of any consideration and that their presence in the pleading would be prejudicial to the moving party. A motion to strike is a means of clearing up the pleadings, not a means of eliminating causes of action or substantive allegations. Id.

Thurman v. Aguilar, 21-1513, p. 7 (La.App. 1 Cir. 6/22/22), 343 So.3d 806, 813, writ denied, 22-1109 (La. 11/1/22), 349 So.3d 8.

We have reviewed the language Defendants find offensive and do not find that it rises to the level of language contemplated by Rule 2-12.2(B) or La.Code Civ.P. art. 964. While Mr. Lacour's characterizations of Defendants’ actions is a bit more descriptive than necessary, we do not find it offensive. Therefore, we deny Defendants’ motion to strike.

PUBLIC RECORDS REQUEST

Mr. Lacour claims that the trial court erred in denying his public records request. He argues that he is being denied his request because of the description he used to request the information. Mr. Lacour argues that the document does exist.

“Mandamus is a writ directing a public officer, a corporation or an officer thereof, or a limited liability company or a member or manager thereof, to perform any of the duties set forth in Articles 3863 and 3864.” La.Code Civ.P. art. 3861. “A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law[.]” La.Code Civ.P. art. 3863.

This court recently summarized the law regarding a public records request in Pesnell v. Williams, 24-328, p. 7 (La.App. 3 Cir. 3/12/25), 409 So.3d 341, 348–49 (alterations in original), writ denied, 25-456 (La. 10/1/25), ___ So.3d ___, writ granted in part and reversed in part on other grounds, 25-513 (La. 10/1/25), ___ So.3d ___:

The right of access to public records is guaranteed by Article 12, Section 3 of the Louisiana Constitution, which provides that “[n]o person shall be denied the right to ․ examine public documents, except in cases established by law.” Because of this guarantee, the Law must be construed liberally in favor of free and unrestricted access. Landis v. Moreau, 00-1157 (La. 2/21/01), 779 So.2d 691. The Law, codified at La.R.S. 44:1–44:41, similarly mandates that “any person of the age of majority may inspect, copy, or reproduce any public record[,]” except as otherwise provided by law. La.R.S. 44:31(B)(1). “Because the right of access to public records is a fundamental right, guaranteed by the Constitution, access can be denied only when a law specifically and unequivocally provides otherwise.” Deshotels v. White, 16-889, p. 8 (La.App. 1 Cir. 8/16/17), 226 So.3d 1211, 1218, writ denied, 17-1565 (La. 12/5/17), 231 So.3d 628. Any doubt as to the public's right of access “must be resolved in favor of the public's right to see.” Id.

The custodian of the record shall present the public records to any person of the age of majority who so requests. La.R.S. 44:32(A). While the record generally must be made available “immediately,” the Law recognizes that some reasonable delay may be necessary to compile, review, and, when necessary, redact or withhold certain records that are not subject to immediate production. La.R.S. 44:33(A) and (B)(1); La.R.S. 44:35(A). However, within five business days of the request, the custodian must provide a written “estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request[.]” La.R.S. 44:35(A). If the custodian fails to provide that notice, the requesting party may institute proceedings for the issuance of a writ of mandamus, injunctive, or declaratory relief. Id.

A public entity is obligated to respond to a request for production of public records only if the requested records exist and fall within the definition of “public records” under the Louisiana Public Records Law. The Louisiana Public Records Law defines “public records” broadly to include all documentary materials, regardless of physical form or characteristics, which are prepared, possessed, or retained for use in the conduct of public business under the authority of state or local law. La.R.S. 44:1(A)(2)(a). This includes electronically stored information and emails used in the performance of public duties. Id. When a custodian determines that the requested record is not available or subject to production, the law requires a written notification. La.R.S. 44:32(D). Louisiana Revised Statutes 44:35 provides that a successful challenge by a plaintiff entitles him to an order directing the custodian to produce the public record and allows for an award of attorney fees, costs, other costs of litigation, and damages.

Review of a judgment on a writ of mandamus is under the abuse of discretion standard. Pesnell, 409 So.3d 341. However, the factual findings of the trial court are subject to the manifest error standard. Id. “Under the manifest error standard, the appellate court does not decide whether the factfinder was right or wrong; rather, it is required to consider the entire record to determine whether a reasonable factual basis exists for the finding and whether the finding is manifestly erroneous or clearly wrong.” Id. at 349.

In ruling on the writ of mandamus, the trial court found that the document requested by Mr. Lacour did not exist. The trial court observed that the evidence and testimony at the hearing established that there is no document that the City uses to monitor its delinquencies. It further noted that the City is not required to have a conversation with Mr. Lacour to obtain more specifics on his request.

The law does not require a public entity to create records that do not exist or to guess the nature and scope of vague requests. “The Public Records Law requires that the custodian of a record prove that a record is not subject to inspection, copying, or reproduction.” Zillow, Inc. v. Aguillard, 22-520, p. 8 (La.App. 3 Cir. 1/25/23), 354 So.3d 870, 875 (citing La.R.S. 44:31(B)(3)). Moreover, the court in Zillow stated:

The Public Records Law is to be liberally construed “in favor of free and unrestricted access to public documents.” Shane v. Par. of Jefferson, 14-2225, p. 9 (La. 12/8/15), 209 So.3d 726, 735. However, the custodian is only required to produce documents in his custody and is not required “to create new documents in the format requested.” Williams Law Firm v. Bd. Of Sup'rs of Louisiana State Univ., 03-79, p. 6 (La.App. 1 Cir. 4/2/04), 878 So.2d 557, 563.

Id.

A “custodian need only produce or make available for copying, reproduction, or inspection the existing records containing the requested information and is not required to create new documents in the format requested.” Zillow, Inc. v. Blanchard, 21-1167, p. 8 (La.App. 1 Cir. 5/17/22), 342 So.3d 892, 897.

When questioned by Mr. Lacour at the hearing, Mr. Goins testified that the document Mr. Lacour received was created in response to his request and it did not exist at the time of his request. Mr. Goins explained that the City did not have anything responsive on its monitoring of delinquent accounts. Mr. Goins testified that the utility department would be the better department to explain how the City monitors delinquent accounts.

Ms. Surgent, the City's utility customer service manager, explained that the City has a delinquency process as opposed to a delinquency report that it utilizes in identifying delinquent accounts. The computer system is designed to identify accounts that are delinquent over thirty days and then it produces separate tickets for each of these customers, which they then disconnect. She explained that there is no report of delinquent accounts.

Ms. Surgent further explained the circumstances surrounding the production of the report she sent to Mr. Lacour. She explained that it was a chaotic day when she received the email regarding his request from the attorneys. She testified that she did not read the email thoroughly, and she realized that she should not have sent the report. She explained that the report can be generated but it is not a report that the City uses to monitor delinquent utility accounts or generate cutoff notices. The City does not generate this report for its use.

Bobby Chaudhry, the customer service supervisor with the City, also testified. Part of his duties involve the cutoff process for utility accounts. He stated that there are no reports that the City utilizes to monitor cutoff notices. He explained that when a customer account becomes delinquent based on the parameters set, the system creates a request for disconnect. If the request is released by the City, a ticket is created by the system. If somebody pays the bill before a ticket is created, then it is cancelled. The requests are released by the oldest first because they can only disconnect around 100 customers a day. Mr. Chaudhry testified that he does not get any reports, so he does not get a delinquency report.

We agree with the trial court's findings that there was no responsive record to Mr. Lacour's request as the City does not use reports to monitor delinquent accounts. The record Mr. Lacour received had to be created by the City and did not exist before its creation. Under the Public Records Law, the City is not required to produce a record that does not exist, and it would follow that the City does not have to create a record that does not exist.

For these reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to Patrick Lacour.

AFFIRMED.

GUY E. BRADBERRY JUDGE