Opinion
NUMBER 2015 CA 1754
06-03-2016
ANTHONY HATCHER v. HILLAR C. MOORE, III, DISTRICT ATTORNEY
Anthony Hatcher Angola, LA In Proper Person, Plaintiff/Appellant Hillar C. Moore, III Dale R. Lee Baton Rouge, LA Counsel for Defendant/Appellee Hillar C. Moore, III, District Attorney, East Baton Rouge Parish
NOT DESIGNATED FOR PUBLICATION Appealed from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge, State of Louisiana
Docket Number 635,586
Honorable William A. Morvant, Judge Presiding
Anthony Hatcher
Angola, LA In Proper Person,
Plaintiff/Appellant Hillar C. Moore, III
Dale R. Lee
Baton Rouge, LA Counsel for Defendant/Appellee
Hillar C. Moore, III, District Attorney,
East Baton Rouge Parish BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WHIPPLE, C.J.
Plaintiff/Appellant, Anthony Hatcher ("Hatcher"), an inmate in the custody of the Louisiana Department of Public Safety and Corrections, appeals from a judgment dismissing, with prejudice, his petition for a writ of mandamus in connection with a public records request made to the East Baton Rouge Parish District Attorney's Office ("district attorney"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 4, 2012, along with an application for Post-Conviction Relief, Hatcher filed a motion with the Nineteenth Judicial District Court Clerk of Court, seeking the district attorney's file regarding his 2010 guilty plea and sentencing. Claiming he had not received a response from the district attorney, on February 28, 2014, Hatcher filed a Petition for Writ of Mandamus seeking an order compelling the district attorney to provide the requested public records. On May 1, 2014, Judge Anthony J. Marabella, Jr. denied Hatcher's petition, and instructed him that the appropriate procedure would be to file a request with the Custodian of Records for the district attorney. Hatcher followed Judge Marabella's instructions, and on May 20, 2014, mailed a letter to the district attorney, seeking its file regarding his criminal proceedings. On June 2, 2014, the district attorney responded, informing Hatcher that the district attorney was no longer in possession of any documents relating to his criminal proceedings, as the files were previously destroyed.
On February 22, 2010, Hatcher entered a guilty plea to one count of armed robbery, a violation of LSA-R.S. 14:64, and on November 15, 2010, he was sentenced to twenty-five years at hard labor, without benefit of probation, parole, or suspension of sentence.
As a result of this denial, on December 5, 2014, Hatcher initiated the proceedings that resulted in this appeal, by filing the instant Petition for a Writ of Mandamus with the district court, continuing to seek a copy of the district attorney's file. In response, the district attorney filed exceptions of no cause and no right of action, prematurity, and mootness, asserting that Hatcher's request for a writ of mandamus was premature as there was no showing that the district attorney had been served with (and thereafter denied) a proper public records request, and that he had no cause/right of action and the request for mandamus was moot, where the district attorney had previously destroyed Hatcher's files in accordance with the three-year retention period provided by LSA-R.S. 44:36(E)(1). Following a March 24, 2015 hearing, the Commissioner recommended dismissing Hatcher's petition. Specifically, the Commissioner noted that the alleged January 4, 2012 motion to the Clerk of Court did not constitute a records request directed towards the district attorney, stating as follows:
I agree with the [district attorney] that not only is the Motion not the 'notice' alleged and relied upon in the petition, but more importantly, it does not constitute a 'request' for records directed to the [district attorney]. It was not filed against the [district attorney] and did not request service on the [district attorney], and though filed in a mandamus directed to the [d]istrict [a]ttorney, there is no proof that the [district attorney] ever had notice of the ancillary request to review the [district attorney's] files contained in the motion.
It is simply a Motion filed with the Court asking it to order the [d]istrict [a]ttorney, to provide the Petitioner the [district attorney's] files in connection with a post[-]conviction proceeding he either contemplated or then had pending. The Petitioner avers that he subsequently wrote to the [d]istrict [a]ttorney requesting the record, and that is when he received the letter stating that the record had been destroyed. As regards [to] the instant mandamus petition, there is no proof in the record that the Petitioner ever directly contacted
the [district attorney's] office to obtain records before the files were destroyed or filing of this suit.
The Commissioner concluded that Hatcher's petition should be dismissed because he failed to show that a records request was ever directed to the district attorney prior to the destruction of the files, and that there was no evidence that any records still existed in the district attorney file concerning Hatcher's criminal proceedings. The district court adopted the Commissioner's recommendations, and dismissed Hatcher's petition with prejudice on April 27, 2015. Hatcher then filed the instant appeal from the judgment, assigning error to the district court's denial and dismissal of his petition for a writ of mandamus.
DISCUSSION
Louisiana Revised Statute 44:36(A) addresses the retention of public records of public bodies as follows in pertinent part:
Louisiana Revised Statute 44:36(E)(1) addresses the retention of public records where there is a conviction in a manner other than by a guilty plea and permits the district attorney to dispose of a file at the conclusion of a three-year retention period, as follows:
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.
In the instant case, because Hatcher pled guilty to one count of armed robbery, the provisions of LSA-R.S. 44:36(E)(1) do not apply. Rather, the general retention rule set forth in LSA-R.S. 44:36(A) would apply.
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....(Emphasis added).
The Public Records Act, LSA-R.S. 44:1, et seq., sets out the procedure to guarantee access to various public records and provides for enforcement of this right by seeking the issuance of a writ of mandamus, injunctive relief, or declaratory relief, together with attorney fees, costs, and damages as provided by LSA-R.S. 44:35. See LSA-R.S. 44:35(A); Chapman v. District Attorney, 2005-0577 (La. App. 1st Cir. 3/29/06), 934 So. 2d 128, 129-30. Should the custodian refuse to allow access to the public records, the custodian must defend his action in a contradictory hearing. However, the enforcement provisions of LSA-R.S. 44:35 presuppose the existence of the records in the office of the custodian. Chapman, 934 So. 2d at 130; Thompson v. Moore, 2012-1625 (La. App. 1st Cir. 4/26/13), 2013 WL 1791140 *1 (unpublished).
In the instant case, the district attorney disposed of the records sought by Hatcher following the three-year retention period provided by LSA-R.S. 44:36(A). Additionally, there was no allegation or proof offered by Hatcher indicating the district attorney prematurely destroyed the desired records. Instead, the records were no longer in existence when the proper request for public records was made to the district attorney on May 20, 2014, or when the instant Petition for Writ of Mandamus was filed on December 5, 2014. Therefore, under these circumstances, the issuance of a writ of mandamus ordering the district attorney's office to provide records that it no longer possesses would be a vain and useless act. Chapman, 934 So. 2d at 130; Thompson, 2013 WL 1791140 at *1. Accordingly, we are unable to find any error in the district court's dismissal of Hatcher's petition for a writ of mandamus.
CONCLUSION
For the foregoing reasons, the April 27, 2015 judgment of the district court is hereby affirmed. All costs of this appeal are assessed to plaintiff/appellant, Anthony Hatcher.
AFFIRMED.