Alanah Odoms v. Chavez Cammon ( 2022 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
Zoai ca 082
ALANAH ODOMS
VERSUS
CHAVEZ CAMMON
Judgment rendered: MAR 0 3 2022
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 704564
The Honorable William A. Morvant, Judge Presiding
Bruce Hamilton Attorneys for Plaintiff/Appellant
Megan E. Snider Alanah Odoms
New Orleans, Louisiana
Jeremiah J. Sams Attorneys for Defendant/ Appellee
Faye D. Morrison Chavez Cammon
Baton Rouge, Louisiana
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
HOLDRIDGE, J.
This appeal involves a mandamus action seeking to obtain documents
pursuant to the Louisiana Public Records Act, La. R. S. 44: 1, et seq. The plaintiff,
Alanah Odoms, the Executive Director for the American Civil Liberties Union of
Louisiana, appeals the April 17, 2021 trial court judgment denying her request for a
writ of mandamus. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On February 9, 2021, the plaintiff filed a petition for a writ of mandamus
pursuant to the Louisiana Public Records Act naming as a defendant, Chavez
Cammon, the Louisiana State Police ( LSP) captain and commander of the public
affairs/ recruiting sections. The plaintiff' s petition stated that the defendant was the
official records custodian for the LSP and served as the central point for public
records requests. In her petition, the plaintiff stated that on September 4, 2019, she
made a public records request to the LSP that requested information on the facial
recognition software used by the LSP. Specifically, the plaintiff' s request stated the
following:
1.
All documents referencing facial recognition software currently
being used by the [ LSP], including its " Fusion" center, including but
not limited to meeting agendas, meeting minutes, public notice,
communications between your office and elected leaders, and analyses.
2.
All documents referencing training conducted by the security
company IDEMIA and provided to the [ LSP], including but not limited
to e- mails, calendar invitations, and memoranda.
On September 27, 2019, the LSP responded with the following, stating in pertinent
part:
As it pertains to your request for " meeting agendas, meeting
minutes, public notice, and communications between your office and
elected leaders," [ Louisiana State Analytic and Fusion Exchange']
maintains no responsive records.
As it pertains to the remainder of the records you request ... your
public records request is denied as the type of information you seek
pertains to investigative techniques, investigative technical equipment
The LSP employed a facial recognition system through a center known as the Louisiana State
Analytical and Fusion Exchange ( Fusion Center) in Baton Rouge.
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or instructions on its use, and investigative training information or aids.
Louisiana Revised Statute 44: 3( A)(3) specifically exempts from the
public records "[ r] ecords containing ... investigative training
information or aids, investigative techniques, investigative technical
equipment or instructions on the use thereof[.]"
On October 2, 2019, the legal director for the American Civil Liberties Union of
Louisiana sought clarification in a second request from the LSP for its denial of the
plaintiff' s first public records request. The LSP responded on December 13, 2019,
stating that " any facial recognition software [ was] investigative technical equipment
covered by the exemption found in La. R.S. 44: 3( A)(3). The nature of the documents
you seek referencing any facial recognition software and training [ were] also
covered by the exemption found in La. R.S. 44:3( A)(3)." Thereafter, on February
9, 2021, the plaintiff filed her petition for a writ of mandamus.
On March 23, 2021, the trial court held a hearing on the plaintiff's petition for
a writ of mandamus.
At the hearing, the counsel for both parties presented
arguments and the plaintiff' s counsel offered into evidence several exhibits, which
included the plaintiff's public records requests made on September 4, 2019 and
October 2, 2019, as well as the response letters from the LSP dated September 27,
2019 and December 13, 2019. The custodian of records for the Investigative Support
Section of the LSP, Captain Robert Hodges, testified at the hearing on behalf of the
LSP. Captain Hodges testified that he was familiar with the plaintiff' s public records
request and that he assisted in preparing the response to her request. Captain Hodges
confirmed that a search for documents related to the plaintiff' s public records request
was performed. Captain Hodges stated that he reached out to the Fusion Center
manager as well as the Director of Research to determine when the facial recognition
software was first used and how the LSP employees were trained. He explained that
a search was conducted through the State' s Office of Technology Services, which
maintained LSP' s e- mail and calendar system. Captain Hodges stated that he
directed the Office of Technology Services to identify communications and calendar
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events related to the Idemia Technology.' The search included all LSP personnel;
however, no documents were identified. Captain Hodges stated that he also looked
for physical documents, but there were none found. Captain Hodges' testimony
confirmed multiple times that a search was conducted and that no documents were
found.
After hearing arguments from the parties, the trial court stated, in pertinent
part, the following:
BASED ON BOTH THE EXHIBITS AND, AS SUPPLEMENTED
BY THE TESTIMONY OF CAPTAIN HODGES, IT APPEARS
THAT WITH REGARD TO QUESTION ONE, ALL DOCUMENTS
REFERENCING FACIAL RECOGNITION SOFTWARE,
INCLUDING BUT NOT LIMITED TO, MEETING AGENDA,
MEETING MINUTES, PUBLIC NOTICES, COMMUNICATIONS
BETWEEN YOUR OFFICE AND ELECTED LEADERS, THERE
WAS A SEARCH AND THERE WERE NO DOCUMENTS
REFERENCING ... FACIAL RECOGNITION SOFTWARE. THERE
WAS NOTHING RESPONSIVE TO THAT REQUEST. AS TO ALL
DOCUMENTS REFERENCING TRAINING CONDUCTED BY
IDEMIA, INCLUDING EMAILS, AGAIN, CAPTAIN HODGES
SAID, " WE' VE GOT NONE." I DO THINK THAT THE TRAINING,
IF THERE WERE DOCUMENTS CONDUCTED, FALLS UNDER
La. R.S. 44: 3( A)(3)], INVESTIGATIVE TRAINING
INFORMATION OR AIDS. AND I THINK THAT THE
SOFTWARE, IF THERE WERE -- IF IT GOES BEYOND THE
SOFTWARE AND IT GOES TO THE ACTUAL TOOL, THAT' S
INVESTIGATIVE TRAINING; AGAIN, TECHNIQUES,
EQUIPMENT, CAPTAIN HODGES USED THE TERM, " THEY
HAVE A FACIAL RECOGNITION SYSTEM AS AN
INVESTIGATIVE TOOL AND IT' S AN INVESTIGATIVE
TECHNIQUE THAT THEY EMPLOY AT THE REQUEST OF
OTHER LAW ENFORCEMENT AGENCIES." AND I THINK THAT
IF THEY HAD SOMETHING RESPONSIVE TO THOSE, IT
WOULD FALL UNDER THE EXCLUSION OF [ La. R.S.
44: 3( A)(3).] BUT I' M SATISFIED, BASED ON WHAT I HAVE
HEARD, THAT THERE ARE NO DOCUMENTS THAT ARE
MAINTAINED BY [ THE LSP] SPECIFIC TO THE REQUESTS
THAT WERE MADE. AND FOR THOSE REASONS, I' M GOING
TO DENY THE REQUEST FOR THE MANDAMUS.
2 Idemia was the security company that created the facial recognition software program that the
LSP utilized.
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A judgment was signed on April 17, 2021, in accordance with the trial court' s oral
ruling, denying the plaintiff' s request for a writ of mandamus. Thereafter, the
plaintiff devoltuively appealed the trial court' s judgment.
APPLICABLE LAW
It is well settled that the public' s right of access to public records is a
fundamental right guaranteed by both the Louisiana Constitution and the Public
Records Act set forth in La. R.S. 44: 1 et seq. Carolina Biological Supply Company
v. East Baton Rouge Parish School Board, 2015- 1080 ( La. App. 1 Cir: 8/ 3 1/ 16), 202
So. 3d 1121, 1125. Article 12, section 3 of the Louisiana Constitution mandates that
n] o person shall be denied the right to ... examine public documents, except in
cases established by law."
The custodian of the record shall present a public records request 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 Public Records Act recognizes
that some reasonable delay may be necessary to compile, review, and, when
necessary, redact or withhold certain records that are not subject to production. See
La. R.S. 44: 33; Stevens v. St. Tammany Parish Government, 2017- 0959 ( La. App. 1
Cir. 7/ 18/ 18), 264 So. 3d 456, 462, writ denied, 2018- 2062 ( La. 2/ 18/ 19), 265 So. 3d
773. In such a case, 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); Stevens, 264 So. 3d at 462.
The enforcement provision under the Public Records Act is contained in La.
R.S. 44: 35 and provides, in pertinent part:
A. Any person who has been denied the right to inspect, copy,
reproduce, or obtain a copy or reproduction of a record under the
provisions of this Chapter, either by a determination of the custodian or
by the passage of five days, exclusive of Saturdays, Sundays, and legal
public holidays, from the date of his in-person, written, or electronic
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request without receiving a determination in writing by the custodian
or an estimate of the time reasonably necessary for collection,
segregation, redaction, examination, or review of a records request,
may institute proceedings for the issuance of a writ of mandamus,
injunctive or declaratory relief, together with attorney 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.
Louisiana Code of Civil Procedure article 3863 provides that a writ of
mandamus may be directed to a public officer to compel the performance of a
ministerial duty required by law. A writ of mandamus is not an appropriate
procedure where there is an element of discretion left to the public officer.
Vandenweghe v. Parish ofJefferson, 11- 52 ( La. App. 5 Cir. 5/ 24/ 11), 70 So. 3d 51,
58, writ denied, 2011- 1333 ( La. 9/ 30/ 11), 71 So.3d 289. A writ of mandamus is " an
extraordinary remedy, to be applied where ordinary means fail to afford adequate
relief."
Hoag v. State, 2004- 0857 (La. 12/ 1/ 04), 889 So. 2d 1019, 1023. The remedy
must be used sparingly ... to compel action that is clearly provided by law." Hamp' s
Const., L.L.C. v. Housing Authority of New Orleans, 2010- 0816 ( La. App. 4 Cir.
12/ 1/ 10), 52 So. 3d 970, 973, quoting Allen v. St. Tammany Parish Police Jury, 96-
0938 ( La. App. 1 Cir. 2/ 14/ 97), 690 So. 2d 150, 153, writ denied, 97- 0599 ( La.
4/ 18/ 97), 692 So. 2d 455. " Mandamus will not lie in matters in which discretion and
evaluation of evidence must be exercised." Hamp' s, 52 So.3d at 973. " The remedy
is not available to command the performance of an act that contains any element of
discretion, however slight." Id. However, La. R.S. 44: 35 authorizes the court to
grant mandamus relief in all cases where a public record is improperly withheld from
a person seeking disclosure.
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Generally, an appellate court reviews a trial court' s judgment on a writ of
mandamus under an abuse of discretion standard. Commodore v. City of New
Orleans, 2019- 0127 ( La. App. 4 Cir. 6/ 20/ 19), 275 So. 3d 457, 465. Also, a trial
court' s findings of fact in a mandamus proceeding are subject to a manifest error
standard of review. Id. However, questions of law, such as the proper interpretation
of a statute, are reviewed by appellate courts under the de novo standard of review,
and the appellate court is not required to give deference to the lower court in
interpreting a statute. Id. at 465- 66.
DISCUSSION
In the instant matter, the plaintiff assigns as error that the trial court erred in
creating requirements not found in the [ Louisiana Public Records Act] to block the
production of records" requested by the plaintiff. Specifically, the plaintiff argues
that the Louisiana Public Records Act does not mandate the use of search terms or
require that records must use the exact phraseology of the public records request.
The plaintiff further argues that the law is silent on specifics relating to language
requestors must use in making their request. Therefore, the plaintiff argues that the
trial court erred in holding that her failure to use specific search terms was fatal to
her public records request because the law is silent on the specifics that language
requestors must use in making a public records request.
In Lewis v. Morrell, 2016- 1055 ( La. App. 4 Cir. 4/ 5/ 17), 215 So. 3d 737, the
Fourth Circuit Court of Appeal set forth the six requirements for invoking the
mandamus remedy under the Public Records Act: ( 1) a request must be made; ( 2)
the requester must be a " person;" ( 3) the request must be made to a " custodian;" ( 4)
the document requested must be a " public record;" ( 5) the document requested must
exist; and ( 6) there must be a failure by the custodian to respond to the request. Id.742- 44. In this case, the plaintiff filed a writ of mandamus seeking the enforcement
VA
of her public records request to the LSP custodian of records, Captain Chavez
Cammon. The record further reveals that Captain Hodges, the records custodian for
the Investigative Support Section of the LSP, assisted in preparing the responses to
the plaintiffs public record request. Captain Hodges' testimony confirmed that a
search was conducted on all documents related to facial recognition software and no
documents were identified. Therefore, the LSP confirmed that the first, second,
third, and sixth requirements of the public records request were satisfied.
However, in order for a mandamus judgment to be issued in this case, the fifth
requirement in Lewis requires that the document requested must exist. Id. at 743.
The record reveals that Captain Hodges searched for Idemia and Morphotrack
software because that is the only facial recognition software that the LSP utilizes.
Captain Hodges' s testimony confirmed that he searched for all documents relating
to facial recognition software and no documents were identified. Captain Hodges'
testimony further confirmed that he made inquiries about whether any facial
recognition software training was provided by Idemia to identify records responsive
to the plaintiff' s public records request and he identified no documents. Thus,
Captain Hodges' testimony remained consistent that no documents were maintained
by the LSP specific to the plaintiff' s public records request on facial recognition
software. Therefore, we find that the trial court was correct in its determination that
there are no documents maintained by the LSP specific to the plaintiff' s public
records request.
Because we find that the fifth requirement for invoking the
mandamus remedy under the Public Records Act is not met, we pretermit analyzing
the fourth requirement; i.e. whether the document requested is a " public record."
Accordingly, after our de novo review of the record, it is apparent that the
plaintiff has failed to satisfy her burden of showing that the extraordinary remedy of
mandamus is warranted in this case pursuant to the Louisiana Public Records Act,
La. R.S. 44: 1, et seq. According to the testimony of Captain Hodges and the holding
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by the trial court, no public record exist as to the plaintiff' s public records request.
Therefore, one of the six requirements identified in Lewis for invoking the
mandamus remedy under the Public Records Act was not met. We find no error in a
the trial court' s judgment denying the plaintiff's petition for a writ of mandamus.'
CONCLUSION
For the above reasons, the April 17, 2021 judgment of the trial court is
affirmed. We assess appeal costs to the plaintiff, Alanah Odoms.
AFFIRMED.
3 Due to our holding in this matter, we pretermit discussion ofthe plaintiff s second assignment of
error as to the trial court broadening the statutory limitation of La. R.S. 44: 3( A)(3) as this argument
was not asserted before the trial court and is being raised on appeal for the first time.
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