Zillow, Inc. v. Jeffrey Gardner, in his official capacity as Assessor for the Parish of East Feliciana ( 2022 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CA 1172
ZILLOW, INC.
VERSUS
JEFFREY GARDNER, IN HIS OFFICIAL CAPACITY
AS ASSESSOR FOR THE PARISH OF EAST FELICIANA
Judgment Rendered. "
APR 0 8 2022
Appealed from the 20' Judicial District Court
In and for the Parish of East Feliciana
State of Louisiana
Case No. 46558
The Honorable Kathryn E. " Betsy" Jones, Judge Presiding
Scott L. Sternberg Counsel for Plaintiff/Appellant
Michael Finkelstein Zillow, Inc.
M. Suzanne Montero
Graham Williams
New Orleans, Louisiana
Brian A. Eddington Counsel for Defendant/Appellee
Baton Rouge, Louisiana Jeffrey Gardner, Assessor for East
Feliciana Parish
BEFORE: McDONALD, LANIER, AND WOLFE, JJ.
t
LANIER, J.
In this appeal, plaintiff, Zillow, Inc., challenges the district court' s May 18,
2021 judgment, which dismissed its petition for writ of mandamus and recalled the
alternative writ of mandamus. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
This case involves a public records request made by Zillow to the East
Feliciana Parish Assessor, Jeffrey Gardner, pursuant to La. R.S. 44: 1, et seq. On
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October 27, 2020, Zillow submitted a public records request to Assessor Gardner
requesting " an opportunity to obtain an electronic copy of the current ( 2020)
Assessment File( s) for all parcels in East Feliciana Parish." Assessor Gardner
responded,
indicating that he had " this data in [ PDF] format only" and could
provide a copy to Zillow for a $ 2, 500. 00 fee. Zillow pressed the issue, requesting
the data in the same format that is sent to the State Commissioner. Assessor
Gardner again replied, stating that the data his office provided to vendors is in PDF
format. Zillow requested a sample of the PDF. According to Zillow, Assessor
Gardner never replied to this request.
In a second public records request, counsel for Zillow requested " an
electronic copy of the current ( 2020) Tax Roll, in its native format ... for all
parcels in East Feliciana Parish." Zillow's counsel indicated that "[ t]hese would
be the same files Zillow has previously requested from your office and received
your authorization to acquire directly from your vendor Software & Services."
In January 2021, counsel for Zillow contacted Assessor Gardner inquiring
about his position with regards to Zillow's public records request. Citing La. R.S.
47: 1993A( 2), Zillow' s counsel argued that "[ r] equiring Zillow to pay an
authorization fee' for these public records, without providing an accounting for the
actual costs or even a legal basis for this fee, flies in the face of the Louisiana
Public Records Law." Counsel requested that Assessor Gardner " waive the data
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release/ authorization fee and allow Zillow to purchase a workable file from [ the
parish' s] vendor for a fee reflective of the actual cost of providing the data."
According to Zillow, Assessor Gardner refused to respond to the public records
request, instead directing Zillow to his counsel for all future communications. In a
follow-up email to Zillow's counsel, Assessor Gardner' s counsel indicated that
Assessor Gardner " does not prepare his roll in A.S. C. I. I. [ American Standard Code
for Information Interchange] and [ PDF] is the only format in which he is able to
provide the requested data."
Thereafter, Zillow filed suit seeking a writ of mandamus against Assessor
Gardner. Zillow argued that a PDF copy would not assist in its analysis of the
public records. Rather, Zillow alleged it needed the " current data in its native
format, preferably from [ Assessor Gardner], or from the Assessor's vendor, who
has custody of the data sought in the format requested." Zillow requested that the
district court order Assessor Gardner " to produce copies of the records sought for a
fee reflective of actual costs of providing an electronic copy." Zillow further
requested that the district court " order the issuance of an alternative writ directing
Assessor Gardner] to perform the act demanded or to show cause to the contrary."
Zillow also requested civil penalties for the arbitrary and capricious failure to
produce the records, as well as attorney fees and costs.
The matter proceeded to a bench trial. Although no witnesses testified,
several documents were introduced into the record without objection, including the
aforementioned emails. At the conclusion of the hearing, the district court ruled in
favor of Assessor Gardner, finding that this was not a dispute over the public
records as neither party denied that the tax records themselves were public records.
Rather, the district court noted, it was " an argument over an entity trying to force
the Assessor to provide the information in a particular format that they will find
more user-friendly to whatever they wish to do with it." The district court
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concluded that Assessor Gardner was " absolutely obligated" to provide the
information to Zillow in " whatever format [ he] maintain[ ed] in [ his] office and in
his] database, whatever format [ he has] in order to accurately copy and provide
the information to the requestor at a reasonable cost." However, the district court
concluded that under the public records law, the Assessor's office was not under
any obligation to put the information into a particular format. In a judgment signed
on May 18, 2021, the district court recalled the alternative writ of mandamus and
dismissed Zillow's petition for writ of mandamus.
Zillow appealed, assigning the following specifications of error for our
review:
1. The [ district court] erred in dismissing Zillow's Petition for
Writ of Mandamus.
2. The [ district court] erred in holding that the assessment
database Zillow requested is not a public document.
3. The [ district court] erred in its interpretation of the Louisiana
Public Records Law and in placing the burden of proof on Zillow.
4. The [ district court] erred in giving credit to argument of counsel
that the document was not in the Assessor' s possession without
competent evidence [ thereof].
5. The [ district court] erred in failing to award attorneys' fees and
costs to Zillow.
DISCUSSION
Mandamus is an extraordinary remedy to be applied where the law provides
no relief by ordinary means or where the delay involved in obtaining ordinary
relief may cause injustice. La. Code Civ. P. art. 3862; Salinger Group, Inc. v.
City -Parish of East Baton Rouge, 2019- 0295 ( La. App. 1 Cir. 7/ 24/ 20), 309
So. 3d 373, 381- 382. Further, a writ of mandamus directed to a public officer is
proper only to compel him to perform a ministerial duty required by law. See La.
Code Civ. P. art. 3863. A ministerial duty is a duty in which no element of
discretion is left to the public officer. It is a simple, definite duty, arising under
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conditions admitted or proved to exist, and imposed by law. Hoag v. State, 2004-
0857 ( La. 12/ 1/ 04), 889 So. 2d 1019, 1024. An appellate court reviews a district
court's judgment denying a writ of mandamus under an abuse of discretion
standard. Gulfsouth Credit, Inc. v. Wiley, 2019- 0526 ( La. App. 1 Cir. 1/ 9/ 20),
294 So. 3d 1096, 1097. Findings of fact in a mandamus proceeding are subject to a
manifest error standard of review. Stevens Construction & Design, L.L.C. v. St.
Tammany Fire Protection District No. 1, 2019- 0955 ( La. App. 1 Cir. 7/ 8/ 20),
308 So. 3d 724, 731, writ denied, 2020- 00990 ( La. 11/ 4/ 20), 303 So. 3d 652.
The right of access to public records is guaranteed by the Louisiana
Constitution and the Public Records Law. La. Const. art. XII, § 3; La. R.S. 44: 1, et
seq. Any person of the age of majority may inspect, copy, or reproduce any public
record or may obtain a copy or reproduction of any " public record" in accordance
with the provisions of the Public Records Law, except as otherwise provided by
law. See La. R.S. 44: 31B. Whenever there is doubt as to whether the public has
the right of access to certain records, the doubt must be resolved in favor of the
public' s right to see; to allow otherwise would be an improper and arbitrary
restriction on the public' s constitutional rights. Shane v. Parish of Jefferson,
2014- 2225 ( La. 12/ 8/ 15), 209 So. 3d 726, 735; In re Matter Under Investigation,
2007- 1853 ( La. 7/ 1/ 09), 15 So. 3d 972, 989. As with Article XII, § 3 of the
Louisiana Constitution, the Louisiana Public Records Law should be construed
liberally in favor of free and unrestricted access to public documents. Shane, 209
So. 3d at 735.
Because the right of access to public records is fundamental, access to public
records may be denied only when the law specifically and unequivocally denies
access. Hilliard v. Litchfield, 2001- 1987 ( La. App. 1 Cir. 6/ 21/ 02), 822 So. 2d
743, 746. The burden of proving that a public record is not subject to inspection,
copying, or reproduction shall rest with the custodian. La. R.S. 44: 31B( 3);
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Hilliard, 822 So. 2d at 746. All exceptions, exemptions, and limitations to the laws
pertaining to public records and their disclosure pursuant to the Public Records
Law must be provided for in the Public Records Law or in the Louisiana
Constitution. See La. R.S. 44: 4. 1A; Angelo Iafrate Const., L.L.C. v. State ex
rel. Dept. of Transp. and Development, 2003- 0892 ( La. App. 1 Cir. 5/ 14/ 04),
879 So. 2d 250, 254, writ denied, 2004- 1442 ( La. 9/ 24/ 04), 882 So. 2d 1131.
A "public record" is defined in La. R.S. 44: 1A(2)( a) as follows:
All books, records, writings, accounts, letters and letter books,
maps, drawings, photographs, cards, tapes, recordings, memoranda,
and papers, and all copies, duplicates, including
photographs,
microfilm, or other reproductions thereof, or any other documentary
materials, regardless of physical form or characteristics, including
information contained in electronic data processing equipment, having
been used, being in use, or prepared, possessed, or retained for use in
the conduct, transaction, or performance of any business, transaction,
work, duty, or function which was conducted, transacted, or
performed by or under the authority of the constitution or laws of this
state, or by or under the authority of any ordinance, regulation,
mandate,
or order of any public body or concerning the receipt or
payment of any money received or paid by or under the authority of
the constitution or the laws of this state, are " public records", except
as otherwise provided in this Chapter or the Constitution of Louisiana.
Louisiana Revised Statutes 44: 32 defines the duties of the custodian and
provides, in pertinent part:
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
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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. The
custodian may request payment of fees in advance of production.
Copies of records may be furnished without charge or at a reduced
charge to indigent citizens of this state.
Although La. R. S. 44: 32B recognizes that portions of the requested material
may be nonpublic and allows the custodian the option to separate that portion from
the requested material, the request for production of information " cannot be so
burdensome as to interfere with the operation of the custodian's constitutional and
legal duties." Elliott v. District Attorney of Baton Rouge, 94- 1804 ( La. App. 1
Cir. 9/ 14/ 95), 664 So. 2d 122, 126, writ denied, 95- 2509 ( La. 12/ 15/ 95), 664 So. 2d
440. The 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.
Williams Law Firm v. Board of Sup' rs of Louisiana State University, 2003-
0079 ( La. App. 1 Cir. 4/ 2/ 04), 878 So. 2d 557, 563 ( citing Nungesser v. Brown,
95- 3005 ( La. 2/ 16/ 96), 667 So. 2d 1036, 1037).' Any person who has been denied
access to a public record may institute proceedings for the issuance of a writ of
mandamus ( as was done in this case), injunctive or declaratory relief, together with
attorney fees, costs and damages. La. R.S. 44: 35A; Johnson v. Broussard, 2012-
1982 ( La. App. 1 Cir. 6/ 7/ 13), 118 So. 3d 1249, 1256.
1 In Nungesser, the Louisiana Supreme Court reversed the appellate court' s decision requiring
the Commissioner of Insurance to provide data that did not exist in the specified form. The
Court reasoned that the Commissioner " was not required to produce a list which did not exist and
properly refused Nungesser' s request." Nungesser, 667 So. 2d at 1037.
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In the instant case, although documentary evidence was introduced at the
hearing without objection, there was no testimony presented. The district court,
did, however, hear argument from counsel for both parties. Counsel for Zillow
explained that it did not want the requested information in PDF format. Rather,
Zillow wanted the entire database for use on its website. Counsel added that in
2019, Zillow was able to get the database from the Louisiana Tax Commission
LTC") in the " text delineated format," i.e., as an Excel file. However, when
Zillow tried to buy the same information for 2020, the fee had been increased from
550. 00 to $ 2, 500. 00 and it was in PDF format. Concerning Assessor Gardner's
contention that he only has the information in PDF format, counsel for Zillow
argued that Software and Services maintains the database for the East Feliciana
Parish Assessor's office, in the format that Zillow needs, and transmits the
information to the Louisiana Tax Commission at the end of each year. Thus,
counsel for Zillow argued, Assessor Gardner would simply need to call Software
and Services and authorize them to release the information to Zillow.
When asked why Zillow was no longer able to acquire information from
Software and Services as they were able to successfully do in the past, counsel for
Assessor Gardner indicated that there was a " great deal of ... confidential taxpayer
information" included in the files and that allowing a third -party contractor to
release these records raised some serious confidentiality concerns. Counsel for
Assessor Gardner indicated that they could provide Zillow with a copy of the
information in PDF format for a fee of $25. 00, " what it cost [ Assessor Gardner] to
dump it on the disk." Counsel argued that as a custodian of public records,
Assessor Gardner is not under any obligation to create a document in a new format,
nor is he " required to have a third party do so."
In Zillow, Inc. v. Sealer, 2021- 545 ( La. App. 3 Cir. 2/ 2/ 22), So. 3d ,
2022 WL 302587, the third circuit considered this very issue in a mandamus action
filed by Zillow against the assessor of Vernon Parish. Zillow filed suit against
Assessor Michael C. Bealer, alleging that on February 20, 2020, it requested an
electronic copy, in text file format, of the current 2019 Web Files and Collections
file for all parcels in Vernon Parish pursuant to the Louisiana Public Records Law.
Zillow asserted that it paid Assessor Bealer $ 1, 250. 00 for the public information
but that the file it received " was not complete and did not include all parcels in
Vernon Parish." Bealer, So. 3d at , 2022 WL 302587 * 1. In response,
Assessor Bealer indicated that Zillow never identified what information was
missing and further that Zillow " demanded that Assessor Bealer ' authorize' his
software service provider [ Software and Services] to create ` an electronic copy of
the current 2019 Web Files and Collections file for all parcels in Vernon Parish in
text file format."' Id. at , 2022 WL 302587 * 1.
Assessor Bealer testified at the one -day hearing before the district court. He
indicated that his office did not keep the information in the text file format as
requested by Zillow. Concerning Zillow' s request to acquire the information
directly from Software and Services, Assessor Bealer testified that he would not
authorize Software and Services to release the requested data to Zillow because
some of the information that' s included in our parish tax roll is confidential
information received ... on LAT forms from ... taxpayers and it is in fact
confidential." Id. at , 2022 WL 302587 * 6. In support of this position,
Assessor Bealer relied on the provisions of La. R.S. 47: 2327, which addresses the
confidentiality of tax forms as follows:
Forms filed by a taxpayer pursuant to this Part shall be
confidential and shall be used by the assessor, the governing authority,
the Louisiana Tax Commission, and the Louisiana Department of
Revenue, solely for the purpose of administering the provisions of this
Part and verifying eligibility for tax credits claimed under R.S.
47: 6006. Such forms shall not be subject to the provisions of the
Public Records Law, provided however, that such forms shall be
admissible in evidence and subject to discovery in judicial or
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administrative proceedings according to general law relating to the
production and discovery of evidence.'
The district court dismissed Zillow's petition for writ of mandamus, finding
that Assessor Bealer had complied with the Public Records Law by producing the
assessment records that were in his custody; that the assessment database in its
native format was maintained by a third -party and was not a public document; and
that Assessor Bealer did not have in his custody " an electronic copy of the current
2019 Web Files and Collections file for all parcels in Vernon Parish in text file
format[.]" Id. at , 2022 WL 302587 * 3.
On appeal, the third circuit agreed with all of the district court' s findings.
The third circuit further agreed with Assessor Bealer' s argument that La. R. S.
47: 2327 provided for the confidentiality of taxpayer's reports, finding no legal
support for Zillow's argument that Assessor Bealer be ordered to have his software
service provider create the assessment record in a " text file format." Id. at ,
2022 WL 302587 * 7.
We note a few key distinctions between the facts of the Bealer case and the
facts of the case before us now. In Bealer, the assessor complied with the public
records request by producing the assessment records in his custody. In the current
case, there have been no records exchanged between Assessor Gardner and Zillow
in response to the public records request in question. Moreover, although Assessor
Bealer testified at the hearing before the district court regarding Zillow's Vernon
Parish public records request, the only evidence before the district court in the
instant case consisted of documentary evidence introduced at the hearing without
objection, including the emails between Assessor Gardner and Zillow. Based on
our review of this evidence, it is clear from Assessor Gardner's responses to
2 We note that the legislature has specifically recognized La. R.S. 47:2327 as an exception to the
public records law, incorporating such exception into the Public Records Act at La. R.S.
44: 4. 113( 32).
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Zillow's requests that his office only has the requested information in PDF format
and that his offer of a PDF copy of the information was not accepted by Zillow.3
Zillow continued to press Assessor Gardner for an electronic copy of the 2020 tax
roll in the format it desired.
Nonetheless, and in spite of these factual differences, one thing remains
constant, i.e., Zillow's position that each assessor should be ordered to have
Software and Services create the assessment record in a text file format and
produce the document to satisfy Zillow's request. Like our brethren in the third
circuit, we find no legal support for Zillow's argument. Zillow' s arguments to the
contrary are without merit.
In the instant petition for writ of mandamus, Zillow requested a copy of the
2020 tax roll " in the same format [ Assessor Gardner] provides it to the State
Commissioner." Thus, while Zillow makes reference to the " format" in which the
information is delivered to the Tax Commissioner, there is never a specific request
for the actual document delivered to the Tax Commission by the Assessor.' See
La. R.S. 47: 1993. Rather, the initial public records request in this case was for an
electronic copy of the current ( 2020) Assessment File( s) for all parcels in East
Feliciana Parish." The follow-up request was for the same information in its native
format. Based on the unique facts and circumstances of this case and the limited
evidence we have before us, we find the district court did not manifestly err in
finding that Assessor Gardner only has this information in PDF format. We further
3 Counsel for Zillow acknowledged during oral argument before this court that a PDF copy of the
information was not what Zillow wanted because it was not helpful. Counsel also stated that
Assessor Gardner had produced a document that Zillow had not requested.
4 While we acknowledge that Assessor Gardner may have contracted with a third -party vendor to
manipulate and/ or convert the data in question in order to create the A. S. C. I.I. file for the Tax
Commissioner, the question of whether any such record created is a public record is not before
us at this time. But see Bealer, So. 3d at , 2022 WL 302587 * 7 ( finding the district court
did not manifestly err in finding that Vernon Parish's " assessment database in its native format
text file format] is maintained by a third -party and not a public document").
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find that Assessor Gardner' s offer to produce the PDF copy of the information for a
fee of $25. 00 is reasonable and, although not accepted by Zillow, would satisfy his
obligation under the Public Records Law.' We find no abuse of discretion in the
district court' s dismissal of the petition for writ of mandamus, nor manifest error in
its factual findings.
DECREE
For the above and foregoing reasons, we affirm the district court' s May 18,
2021 judgment and assess all costs associated with this appeal against
plaintiff/appellant, Zillow, Inc.
AFFIRMED.
5 As the PDF copy of the information is not before us on review, we make no ruling as to
whether the contents of any specific document qualify as public records under the Public
Records Law.
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
DOCKET NUMBER
2021 CA 1172
ZILLOW, INC.
VERSUS
7EFFREY GARDNER, IN HIS OFFICIAL CAPACITY
AS ASSESSOR FOR THE PARISH OF EAST FELICIANA
McDONALD, 7., concurring.
I concur with the majority opinion insofar as it affirms the district court's dismissal
of Zillow' s petition for writ of mandamus against Assessor Gardner. I write separately
regarding three issues.
First, the majority opinion sets forth the Louisiana Code of Civil Procedure' s general
mandamus law. I acknowledge that this court has, as have other circuits, cited to general
mandamus law in Public Records Law cases. However, the more specific law governs
over the more general. Burge v. State, 10- 2229 ( La. 2/ 11/ 11), 54 So. 3d 1110, 1113.
Because the Public Records Law contains its own mandamus remedy, set forth in La. R. S.
44: 35, I question the applicability of the general mandamus law and cases interpreting
that law to public records cases such as the one before us here. Under the Public Records
Law, any person who has been denied the right to obtain a copy of a record may file a
mandamus suit against the custodian. See La. R. S. 44: 35A. In that suit, the custodian
has the burden to sustain his action. See La. R. S. 44: 35B. The district court decides the
matter de novo and has jurisdiction to issue a writ of mandamus ordering the custodian
to produce any records improperly withheld from the person seeking disclosure. Id.Thus, it appears that the mandamus relief under the Public Records Law could be
available, in some circumstances, when such would not be available under general
mandamus law — e.g., even when the custodian' s duty to respond or to produce public
records involves some element of discretion, rather than merely a ministerial duty. See
Odoms v. Cammon, 21- 0828 ( La. App. 1 Cir. 3/ 3/ 22), 2022 WL 620773, * 3 ( citing general
mandamus law but then stating, " 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."). Further, in a Public Records Law mandamus action, it is the
custodian who has the burden of sustaining his action regarding production of an alleged
public record, whereas, in a general mandamus action, it is the plaintiff who must prove
by a preponderance of the evidence that he is entitled to a writ of mandamus. See
Bernard v, La. Testing & Inspection, Inc., 19- 575 ( La. App. 3 Cir. 2/ 5/ 20), 290 So. 3d 239,
244. Finally, we are required to construe the Public Records Law ( including its mandamus
provisions) liberally, resolving all doubt in favor of the public's right to public documents.
Shane v. Par, of.7efferson, 14- 2225 ( La. 12/ 8/ 15), 209 So. 3d 726, 735. In contrast, we
construe a general mandamus proceeding to be an extraordinary remedy that should be
applied only where ordinary means fail to afford adequate relief. Board of Trustees of
Sheriffs Pension and Relief Fund v. City of New Orleans, 02- 0640 ( La. 5/ 24/ 02), 819
So. 2d 290, 292. Therefore, I respectfully note that reliance on general mandamus law
and cases may not be appropriate in Public Records Law mandamus litigation.
Next, the majority opinion summarizes arguments made at the mandamus hearing
by the parties' lawyers as to the specific nature of the records Zillow wanted from
Assessor Gardner, his response to Zillow' s inquiries, and the possibility that he could
contact his software provider to provide the information Zillow wanted in the format Zillow
requested. However, to avoid any contrary implication, I note that argument by counsel
does not constitute evidence, and as such, has no evidentiary value. Bue/le v. Periou,
04- 2733 ( La. App. 1 Cir. 12/ 22/ 05), 927 So. 2d 1126, 1129.
Last, I note that the majority opinion discusses one of the Third Circuit's recent
cases dealing with issues similar to those herein, Zillow, Inc, v. Bealer, 21- 545 ( La. App.
3 Cir. 2/ 2/ 22), So. 3d , 2022 WL 302587, but does not mention a second Third
Circuit case dealing with the same issues between Zillow and another parish tax assessor,
i.e., Zillow, Inc. v. Matt Taylor, as Catahoula Tax Assessor, 21- 739 ( La. App. 3 Cir.
3/ 30/ 22), So. 3d , 2022 WL 946615. The latter opinion appears to also support
the majority's position.
2