Opinion
NUMBER 2015 CA 1328
02-29-2016
CLAUDE ROBERSON v. HILLAR C. MOORE, III, DISTRICT ATTORNEY, 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA
Claude Roberson St. Gabriel, LA Plaintiff/Appellant Pro Se Monisa L. Thompson Assistant District Attorney Baton Rouge, LA Defendant/Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Suit Number C610342 Honorable Timothy Kelley, Presiding Claude Roberson
St. Gabriel, LA Plaintiff/Appellant
Pro Se Monisa L. Thompson
Assistant District Attorney
Baton Rouge, LA Defendant/Appellee
State of Louisiana BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. GUIDRY, J.
Plaintiff-Appellant, Claude Roberson, an inmate in the custody of the Louisiana Department of Public Safety and Corrections, appeals from a judgment dismissing his petition for a writ of mandamus in connection with a request for public records made to the district attorney. For the reasons that follow, we affirm
FACTS AND PROCEDURAL HISTORY
Roberson was convicted of second degree murder of his wife, Darla Roberson, and was sentenced to life imprisonment, Roberson's conviction and sentence, as amended, were affirmed in State v. Roberson, 95-1825 (La. App. 1st Cir. 9/27/96) (unpublished opinion), writ denied, 96-2606 (La. 4/4/97) 684 So. 2d 84. Thereafter, in May of 2011, Roberson made two separate requests for public records regarding his trial file from the District Attorney's Office. However, the District Attorney's Office notified Roberson in response to each request that pursuant to La. R.S. 44:36(E)(1), it no longer possessed any police reports, photographs, scientific analysis reports, or any other requested items.
Thereafter, Roberson filed a petition for writ of mandamus on March 20, 2012, seeking to compel the district attorney to provide him with a copy of his file from his criminal conviction. The district attorney answered Roberson's petition, asserting that Roberson's conviction was final on April 4, 1997, as set forth in La. C.Cr.P. art. 922(D), when the Louisiana Supreme Court denied writs in this matter; that La. R.S. 44:36(E)(1) provides for the retention of public records of a prosecuting agency pertaining to a criminal prosecution resulting in a conviction for 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; and that Roberson's request for public records came in 2011, after the district attorney's trial file on petitioner was destroyed pursuant to law. Accordingly, the district attorney asserted that the District Attorney's Office is unable to provide copies of Roberson's trial file as Roberson requested. However, the district attorney did provide a copy of Roberson's index card pertaining to his trial file, which the district attorney attached to his answer.
Following a hearing in this matter before a Commissioner for the Nineteenth Judicial District Court, the Commissioner issued a report, finding that because the district attorney had destroyed Roberson's records pursuant to La. R.S. 44:36, there is no record, public or otherwise, that can be provided to Roberson. Accordingly, the Commissioner found that there was no relief available on Roberson's request for writ of mandamus, and he recommended that the suit for mandamus be dismissed with prejudice at Roberson's cost.
After a careful de novo consideration of the record, the district court signed a judgment adopting the Commissioner's recommendation and ordering that Roberson's petition for mandamus be dismissed with prejudice. Roberson now appeals from the district court's judgment.
DISCUSSION
Louisiana Revised Statute 44:36(E)(1) provides:
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.
The Public Records Act, La. 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 La. R.S. 44:35. See La. R.S. 44:35(A); Chapman v. District Attorney, 05-0577, p. 3 (La. App. 1st Cir. 3/29/06), 934 So. 2d 128, 129-130. 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 La. R.S. 44:35 presuppose the existence of the records in the office of the custodian. Chapman, 05-0577 at p. 4, 934 So. 2d at 130.
In the instant case, the district attorney disposed of the records being sought following the conclusion of the three-year retention period provided for in La. R.S. 44:36(E)(1). Thus, the records being sought by Roberson were no longer in existence when the request for public records was made to the District Attorney's Office in 2011. Therefore, under these circumstances, it would be a vain and useless act to issue a writ of mandamus ordering the District Attorney's Office to provide records that it no longer possesses. Chapman, 05-0577 at p. 4, 934 So. 2d at 130; Wallace v. Ware, 94-2204, pp. 5-6 (La. App. 1st Cir. 6/23/95), 657 So. 2d 734, 737.
Roberson asserts on appeal that the District Attorney's Office is required, by law, to maintain electronic copies of public records, and the district attorney has not established that his office does not possess such electronic copies of Roberson's records. However, we find this argument to be without merit. Louisiana Revised Statute 44:39(A)(1), relating to microfilm and electronic digitized records, provides, in pertinent part, that "[a]ll 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. ..." (Emphasis added.) Contrary to Roberson's assertion, the use of electronic records is clearly permissive on the custodian of the public records and not mandatory, --------
CONCLUSION
For the foregoing reasons, we find no error in the district court's judgment dismissing Roberson's petition for writ of mandamus with prejudice. All costs of this appeal are assessed to Claude Roberson.
AFFIRMED.