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TITLE 44

PUBLIC RECORDS AND RECORDERS

CHAPTER 1.  PUBLIC RECORDS

PART II.  GENERAL PROVISIONS

§31.  Right to examine records

A.  Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.

B.(1)  Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person of the age of majority may inspect, copy, or reproduce any public record.

(2)  Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record.

(3)  The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

Amended by Acts 1978, No. 686, §1; Acts 1999, No. 1154, §1; Acts 2004, No. 759, §1.

§31.1.  Exceptions; authority of the custodian

For the purposes of this Chapter, person does not include an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post-conviction relief under Code of Criminal Procedure Article 930.3.  Notwithstanding the provisions contained in R.S. 44:32, the custodian may make an inquiry of any individual who applies for a public record to determine if such individual is in custody after sentence following a felony conviction who has exhausted his appellate remedies and the custodian may make any inquiry necessary to determine if the request of any such individual in custody for a felony conviction is limited to grounds upon which such individual may file for post-conviction relief under Code of Criminal Procedure Article 930.3.

Acts 1995, No. 653, §1.

§31.2.  Public records awareness program

The attorney general shall establish a program for educating the general public, public bodies, and custodians regarding the provisions of this Chapter.  Such program may include brochures, pamphlets, videos, seminars, and Internet access to information which provides training on the provisions of this Chapter, including the custodian's responsibilities in connection with a request for records and the right of a person to institute court proceedings if access to a record is denied by the custodian.

Acts 1999, No. 1154, §1.

§32.  Duty to permit examination; prevention of alteration; payment for overtime; copies provided; fees

A.  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 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.

B.  If 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.

C.(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.

(b)  For all public records in the custody of a clerk of court, the clerk may also establish reasonable uniform written procedures for the reproduction of any such public record.  Additionally, in the parish of Orleans, the recorder of mortgages, the register of conveyances, and the custodian of notarial records may each establish reasonable uniform procedures for the reproduction of public records.

(c)  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.

(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.

(3)  No 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.

D.  In any case in which a record is requested and a question is raised by the custodian of the record as to whether it is a public record, such custodian shall within three days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of the request, in writing for such record, notify in writing the person making such request of his determination and the reasons therefor.  Such written notification shall contain a reference to the basis under law which the custodian has determined exempts a record, or any part thereof, from inspection, copying, or reproduction.

Amended by Acts 1968, No. 473, §1; Acts 1978, No. 686, §1; Acts 1981, No. 933, §2; Acts 1989, No. 404, §1, eff. June 30, 1989; Acts 1995, No. 372, §2, eff. July 1, 1995; Acts 1999, No. 1154, §1; Acts 2004, No. 759, §1; Acts 2005, No. 193, §2.

NOTE:  See Acts 2005, No. 193, §3, requiring removal from clerks' offices of privately owned imaging equipment no later than 30 days after August 15, 2005.

§33.  Availability of records

A.(1)  When a request is made for a public record to which the public is entitled, the official, clerks of court and the custodian of notarial records in and for the parish of Orleans excepted, who has responsibility for the record shall have the record segregated from other records under his custody so that the public can reasonably view the record.

(2)  If, however, segregating the record would be unreasonably burdensome or expensive, or if the record requested is maintained in a fashion that makes it readily identifiable and renders further segregation unnecessary, the official shall so state in writing and shall state the location of the requested record.

B.(1)  If the public record applied for is immediately available, because of its not being in active use at the time of the application, the public record shall be immediately presented to the authorized person applying for it.  If the public record applied for is not immediately available, because of its being in active use at the time of the application, the custodian shall promptly certify this in writing to the applicant, and in his certificate shall fix a day and hour within three days, exclusive of Saturdays, Sundays, and legal public holidays, for the exercise of the right granted by this Chapter.

(2)  The fact that the public records are being audited shall in no case be construed as a reason or justification for a refusal to allow inspection of the records except when the public records are in active use by the auditor.

Amended by Acts 1978, No. 686, §1; Acts 1982, No. 567, §1.

§34.  Absence of records

If any public record applied for by any authorized person is not in the custody or control of the person to whom the application is made, such person shall promptly certify this in writing to the applicant, and shall in the certificate state in detail to the best of his knowledge and belief, the reason for the absence of the record from his custody or control, its location, what person then has custody of the record and the manner and method in which, and the exact time at which it was taken from his custody or control.  He shall include in the certificate ample and detailed answers to inquiries of the applicant which may facilitate the exercise of the right granted by this Chapter.

Amended by Acts 1978, No. 686, §1.

§35.  Enforcement

A.  Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney's fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.

B.  In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure.  The court shall determine the matter de novo and the burden is on the custodian to sustain his action.  The court may view the documents in controversy in camera before reaching a decision.  Any noncompliance with the order of the court may be punished as contempt of court.

C.  Any suit brought in any court of original jurisdiction to enforce the provisions of this Chapter shall be tried by preference and in a summary manner.  Any appellate courts to which the suit is brought shall place it on its preferential docket and shall hear it without delay, rendering a decision as soon as practicable.

D.  If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorney's fees and other costs of litigation.  If such person prevails in part, the court may in its discretion award him reasonable attorney's fees or an appropriate portion thereof.

E.(1)  If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided.  In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.

(2)  The custodian shall be personally liable for the payment of any such damages, and shall be liable in solido with the public body for the payment of the requester's attorney fees and other costs of litigation, 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, and in the event the custodian retains private legal counsel for his defense or for bringing suit against the requester in connection with the request for records, the court may award attorney fees to the custodian.

F.  An award for attorney fees in any suit brought under the provisions of this Chapter shall not exceed the amounts approved by the attorney general for  the employment of outside counsel.

Amended by Acts 1978, No. 686, §1; Acts 1988, No. 336, §1; Acts 1999, No. 1154, §1.

§36.  Preservation of records

A.  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.

B.  All existing records or records hereafter accumulated by the Department of Revenue may be destroyed after five years from the thirty-first day of December of the year in which the tax to which the records pertain became due; provided that these records shall not be destroyed in any case where there is a contest relative to the payment of taxes or where a claim has been made for a refund or where litigation with reference thereto is pending.

C.  All existing records or records hereafter accumulated by the various services of the state or its subdivisions which participate in federal programs or receive federal grants may be destroyed after three years from the date on which the records were made in those cases where this provision is not superseded by guidelines for the operative federal program or grant requiring longer retention periods for the records in question; provided that these records shall not be destroyed in any case where litigation with reference thereto is pending, or until the appropriate state or federal audits have been conducted.

D.  All existing records or records hereafter accumulated by the Department of Public Safety and Corrections, Corrections Services, pertaining to any adult offender may not be destroyed until after ten years from the date the full term sentence imposed upon such offender expires.

E.(1)  The public records of  a prosecuting agency, pertaining to a criminal prosecution that results in a conviction, in a manner other than a plea, shall be retained for a period of three years from the date on which a court of appeal affirms the conviction, the Louisiana Supreme Court denies writs, or the Louisiana Supreme Court makes its final ruling on the appeal, whichever occurs last.

(2)  The provisions of this Subsection shall not apply to any records expunged as provided by law.

(3)  Nothing in this Subsection shall be construed in any manner to affect or alter the provisions of R.S. 44:3 regarding the records of prosecuting agencies.

Amended by Acts 1950, No. 134, §1; Acts 1954, No. 473, §1; Acts 1978, No. 43, §1; Acts 1983, 1st Ex.  Sess., No. 11, §1, eff. Jan. 19, 1983; Acts 1986, No. 1075, §1; Acts 1991, No. 310, §1; Acts 1997, No. 1269, §1, eff. July 15, 1997; Acts 2003, No. 322, §1.

§37.  Penalties for violation by custodians of records

Any person having custody or control of a public record, who violates any of the provisions of this Chapter, or any person not having such custody or control who by any conspiracy, understanding or cooperation with any other person hinders or attempts to hinder the inspection of any public records declared by this Chapter to be subject to inspection, shall upon first conviction be fined not less than one hundred dollars, and not more than one thousand dollars, or shall be imprisoned for not less than one month, nor more than six months.  Upon any subsequent conviction he shall be fined not less than two hundred fifty dollars, and not more than two thousand dollars, or imprisoned for not less than two months, nor more than six months, or both.

§38.  Access to records involved in legislative studies

Notwithstanding any other law to the contrary, the custodian of records of the Department of Social Services, office of community services, and the custodian of records of each juvenile court or any court which hears and decides juvenile matters shall grant access to a percentage, as specified by the legislative committee, of the total records of defined classes of children in state custody or in foster care to any committee of the legislature acting pursuant to an appropriate legislative instrument directing the committee to study procedures or outcomes of cases involving children in state custody or in foster care.  The size of the specific group to be studied shall be large enough to preserve the anonymity of individual children.  Such access shall be limited to that purpose, and all information regarding names or other identifiers shall be removed.  Information pertaining to children who have been adopted shall be strictly confidential and shall be released only in accordance with existing laws.

Acts 1999, No. 1267, §1.

§39.  Microfilm and electronic digitized records; use as evidence

A.(1)  All persons and public bodies having custody or control of any public records of the state of Louisiana or any of its subdivisions may utilize any appropriate form of the microphotographic process, or an electronic digitizing process capable of reproducing an unalterable image of the original source document, for the recordation, filing, and preservation of all existing public records, forms, and documents or records, forms, and documents hereafter accumulated which pertain to their functions and operations in order to maintain efficient and economical records management programs and to conserve storage space, provided that the use of such microphotographic or electronic digitizing processes are not otherwise prohibited by law and that all microforms produced comply with standards established by the division of archives, records management, and history of the Department of State in accordance with the provisions of R.S. 44:415.

(2)(a)  However, when electronic digitizing is utilized, the original source document or microfilm of such source document shall be maintained until such time as electronic digitizing is recognized as an acceptable means of records preservation.

(b)  Notwithstanding the provisions of this Subsection, the agencies and entities set forth in this Subparagraph shall not be required to maintain the original source document or microfilm thereof when such document has been preserved utilizing electronic digitizing pursuant to written operating standards providing for retention and back-up schedules in accordance with recognized computer operating practices which at a minimum provide the technical equivalent of back-up copies:

(i)  Public safety services within the Department of Public Safety and Corrections.

(ii)  All public retirement systems, plans, and funds.

(iii)  Any further exceptions to the provision to maintain original source documents or microfilm thereof under this Subsection must be approved in writing by the state archivist.

B.  Any microfilm or electronically digitized copy, when satisfactorily identified, shall be deemed to be an original itself, and shall be admissible in evidence in all courts or administrative proceedings in any agency, whether the original document is in existence or not, and an enlargement or facsimile of a reproduction is likewise admissible in evidence, if the original reproduction is in existence and available for inspection under direction of the court or the administrative agency.  Original records shall remain subject to subpoena.

Amended by Acts 1950, No. 134, §1; Acts 1978, No. 364, §1; Acts 1986, No. 1075, §1; Acts 1987, No. 621, §1; Acts 1997, No. 373, §1; Acts 1998, 1st Ex. Sess., No. 73, §1, eff. May 1, 1998; Acts 1999, No. 301, §1, eff. July 1, 1999.

§40.  Additional copies of records by microphotographic process; purchase of equipment; funds available for payment; copies of suit records

A.  The several clerks of court and ex officio recorders and registers of conveyances and recorders of mortgages, throughout the state, are hereby authorized at their option to make additional copies, by means of the microphotographic process, of all original acts and/or records thereof, including criminal records, of every nature and kind in their custody by virtue of their various official capacities as such clerks of court and ex officio recorders and registers of conveyances and recorders of mortgages, filed or recorded in their offices prior to July 29, 1964 and subsequent thereto.

B.  Such clerks of court and ex officio recorders and registers are hereby authorized to purchase the necessary microphotographic equipment and equipment used to retrieve from storage microfilm copies, to lease such equipment or to contract with competent independent contractors, or both, according to the discretion of said clerks of court and ex officio recorders and registers, to cause the records described in this section to be copied and reproduced by means of the microphotographic process.

C.  Each such clerk of court and ex officio recorder and register is hereby authorized to defray the cost of copying, reproducing and retrieving the records described in this section, including the cost of microphotographic and retrieval equipment and services, out of any funds available in the clerk's salary fund.

D.  In the parish of Orleans the judges of the civil district court and the criminal district court, and in the remainder of the state the respective police juries or other governing authorities of the several parishes, are authorized to provide the necessary funds, when such funds are not already available, to enable said clerk of courts and ex officio recorders and registers to carry out the provisions of this section.

E.  The several clerks of court, including the clerks of the Criminal or Civil District Courts for the parish of Orleans, shall make and retain in their custody, by means of the microphotographic process, a copy of all original criminal and civil records of every nature and kind, which are deemed permanent under a record retention and disposal schedule adopted by the secretary of state and the clerks of court in accordance with R.S. 44:410, and which have been in their custody for a period of five or more years.  The clerks of court may then destroy the original criminal records and any other records, the destruction of which is authorized by R.S. 13:917, which have been so copied and retained.  However, all records in suits affecting records relating to immovable property, or adoption, interdiction, successions, trusts, or emancipation, shall be retained in their original form, even though they have been copied as provided herein.

F.  Five years after rendition of a final judgment from which no appeal may be taken, in any suit, except suits affecting records relating to immovable property, adoption, interdiction, successions, trusts or emancipation, the clerk of court, including the clerk of the Criminal or Civil District Court in the parish of Orleans, shall transfer at the direction of the state archivist all permanent records in the suit to the Department of State, as custodian of the official archives of the state, for safe and secure storage, service, restoration, and preservation.  The state archivist shall establish a schedule by which all suit records heretofore accumulated by various clerks of court shall be transferred.  The schedule shall include provisions for transfer from the parishes, in alphabetical order, of records from the years 1699 through 1921, to be completed by December 31, 1980, and for transfer, in the same order, of records from the years since 1921 in which the final judgment was rendered prior to September 8, 1973, to be completed by December 31, 1981.  Upon receipt, the department shall make reproductions of the original records by the microphotographic process, retain a master negative thereof, and transmit to the sending clerk a copy of the reproductions of the records.  The department shall maintain the confidentiality of any records, or parts thereof, which are so classified by law.  Thereafter, notwithstanding the provisions of R.S. 44:421, the department shall not make or authenticate copies or reproductions of those records but, upon receipt of any request for service or of any inquiry relating to those records, the department shall forward the request or inquiry to the appropriate clerk of court, who may render the necessary services and charge the appropriate fees, as provided in R.S. 13:841 or 844, or in Orleans Parish by R.S. 13:1213 or 1381.

The provisions of this Subsection shall not apply to any records, the destruction of which is authorized by Subsection E of this section or by R.S. 13:917.

Acts 1958, No. 350, §§1 to 4.  Amended by Acts 1964, No. 415, §1; Acts 1972, No. 498, §§1, 2; Acts 1978, No. 365, §1; Acts 1978, No. 396, §1.

§41.  Receiving and filing map, plat, etc. for record

A.  After September 1, 1970, no clerk of court, recorder of mortgages or register of conveyances, or any other public authority shall receive and file for record any map, plat, or survey attached to and pertaining to the sale or mortgage of property, when such map, plat, or survey is required by either party, which does not have impressed thereon, and affixed thereto, the signature and seal or stamp of a professional land surveyor duly licensed in accordance with the provisions of Chapter 8 of Title 37 of the Louisiana Revised Statutes of 1950 by whom or under whose responsible charge said map, plat, survey, or other document was prepared.

B.  Failure to comply with the provisions of this Section shall not invalidate any title to real property otherwise legally valid.

Acts 1970, No. 532, §1; Acts 2003, No. 279, §7.

§42.  Repealed by Acts 1986, No. 1075, §2.

 

 

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