Judge says: “Deliberate indifference and ineptitude”

In a fascinating case from Louisiana, district judge Janice Clark ruled yesterday that two state agencies displayed “deliberate indifference and ineptitude ris[ing] to [the] level of arbitrary and capricious” in their response to a records request under the Louisiana Sunshine Law.

The case has to do with Louisiana’s laws for tax credits for movie production studios. The law changed in 2007 in a way that may prevent some production studios from qualifying for the credit. As a result, an interested party sought documents from the two states agencies that have the most to do with these laws to see how the legal changes were discussed within the agencies during the time that the statutory changes were under consideration.

An attorney for the interested party filed a lawsuit alleging that not all the records were properly surrendered when an employee of one of the agencies turned over a storehouse of records directly to the attorney. These records had not been included in the records provided to the attorney by the agencies themselves.

(Independent confirmation that an agency didn’t give you all the records you requested is the stuff of dreams for FOIA requestors.)

The agencies apparently ran a few keyword searches when the records were originally requested, and turned over a “small set” of records. As the lawsuit progressed, the agencies managed to find about 2,600 documents that they provided for the first time during the trial.

The agencies say they did make a good-faith effort to fulfill the original request. The judge ruled that the evidence presented during a 10-hour hearing on Monday suggests that “ineptitude” and “deliberate indifference” work better for her than “good faith” and “sincere” as descriptions of how the agencies handled themselves.

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