1st Circuit Reverses District Judge Kay Bates

Newspaper’s Fight For Public Records Gets Boost from Three-Judge Panel

CENTRAL — The 1st Circuit Court of Appeal has given the Central City News a big victory in its fight for access to public records in the City of Central.

In a unanimous ruling, the three-judge panel reversed a 2010 decision by District Judge Kay Bates in favor of CH2MHILL and its efforts to keep the records secret.

The appellate court remanded the case to Judge Bates for a hearing on the connexity between the City of Central and CH2MHILL.

For three years, CH2MHILL had the master privatization contract to administer the City of Central, and Central became the only city in Louisiana to be completely privatized.

In early April 2010, CH2MHILL refused to provide the Central City News with Public Records in accordance with a Public Records request filed by the newspaper.  After repeated requests for the documents, the newspaper filed suit to obtain the documents pursuant to Louisiana’s Public Records Law.

The newspaper argued that privatization should not be an excuse to withhold Public Records from the public.

District Judge Kay Bates ruled in favor of CH2MHILL and denied the newspaper’s Public Records request on grounds that CH2MHILL is a private, for-profit company.

However, in its published opinion, the 1st Circuit Court of Appeal’s three-judge panel said, “The fact that CH2MHILL is a private entity does not, ab initio, place the requested records outside the reach of a public records request.”  It cited the Louisiana Supreme Court decision in the case of Spain v. Louisiana High School Athletic Association.

Presiding Judge Vanessa Whipple of Houma wrote the opinion for the court, saying,

“At the outset, we note that it is undisputed that CH2M Hill is a private, for-profit corporation operating pursuant to a contract with Central City.  However, its status as such does not end our inquiry, given the broad definition of a public body in the above cited statute. Instead, the issue at the heart of the motions for summary judgment herein is whether, given its contractual relationship with Central City, wherein CH2M Hill provides Central City essential services and operates the City of Central, CH2M Hill has, by contract and practice, made itself a ‘public body’ within the meaning of Louisiana’s Public Records Law, such that its records are subject to a public records request.”

“Central City News contends that CH2M Hill has positioned itself as the ‘contracted de facto’ government of the City of Central and, therefore, is ‘obviously’ serving as a governmental entity by providing a governmental function.Central City News argues that transparency in government cannot be lost through privatization, as there is a constitutionally based responsibility owed to the people to protect citizens from dishonesty and to promote responsibility in government by allowing them to observe the deliberations and examine the records of their government.  Finally, Central City News contends that when the functions of a government are transferred in a wholesale manner to a private entity, that private entity must be considered to be a stand-in for the municipality and a ‘public body’ for purposes of the Louisiana Public Records Law, at least with respect to any records in its possession that in any way relate to the City of Central.”

“On review, we recognize that CH2M Hill is a private, for profit corporation and is not a ‘branch,’ ‘department,’ ‘agency,’ ‘political subdivision’ or ‘governing authority,’ as set forth in LSA-R.S. 44:1(A)(1). Thus, we agree with CH2M Hill that it is not a ‘public body’ per se, as contemplated by these provisions of the statute.  However, the fact that CH2MHill is a private entity does not, ab initio, place the requested records outside the reach of a public records request.  In Spain v. Louisiana High School Athletic Association, 398 So. 2d 1386 (La. 1981), where a private, voluntary association (LHSAA), was nonetheless found to be a ‘public body’ under the definition contained in the Open Meetings Law, LSA-R.S. 42:4.2(A)(2), the Louisiana Supreme Court recognized that the connexity between the LHSAA and the Louisiana Board of Elementary and Secondary Education, the Superintendent of Education, and local school boards must be considered, stating as follows:

The LHSAA performs a function which is, by law, entrusted to the various bodies established for the regulation of public education.    It is funded by public money earned by state schools at athletic events. It has established a comprehensive set of rules and regulations governing how public schools and their students must conduct themselves with regard to athletic and academic endeavors, all with the acquiescence and implied blessing of the legislature, Board of Elementary and Secondary Education, Superintendent of Education, and local school boards. See Seghers v. Community Advancement Inc., 357 So. 2d 626 (La. App. 1st Cir. 1978). Equally important is the degree of connexity between the regulatory functions of the LHSAA and the regulatory functions of a particular ‘public body’ found in R.S. 42:4.2(A)(2). Here the connexity is close, since LHSAA performs a major policy-making, advisory and administrative function in an area that is within the primary control of public bodies listed in the Open Meetings Law. [Emphasis added by the appeals court]. Spain v. Louisiana High School Athletic Association, 398 So. 2d at 1390.”

“Further, we note that the phrase ‘public body,’ as used in the public records act specifically includes ‘any other instrumentality’ of state government within the definition and meaning of ‘public body.’  While the phrase ‘instrumentality of… municipal government’ is not further defined in the public records statute, we recognize that as in Spain, the record before us shows there is a degree of connexity between CH2M Hill and the City of Central, given CH2M Hill’s administration of the City of Central’s government functions and services.  Further, CH2M Hill presumably receives public money from the City of Central for these services, although the extent of such is likewise not readily apparent on the record as developed thus far.  Thus, the precise nature and extent of such services and connexity are not developed in the record before us and the trial court did not make the mandated determination of connexity below.  In sum, on the record before us, we are likewise unable to discern the extent of the ‘connexity’ to resolve whether CH2M Hill’s contract and operations render it an ‘instrumentality’ of the city government and thereby, subject to the public records request as such.”

“Instead, on review, we find the supporting documents presented by both sides are insufficient to resolve all material issues of fact regarding the connexity of CH2M Hill and the City of Central.  Moreover, we question whether such fact-based issues can be resolved on summary judgment.  Further, given the strong public policy interests supporting open access to government records, we agree that the trial court must make the necessary case-by-case determination of connexity after a full evidentiary hearing on whether CH2M Hill is an instrumentality of government herein.  Accordingly, we find that this matter is not appropriate for resolution by summary judgment in favor of either party.”

“Thus, we find merit, in part, to these assignments of errors.”

“CONCLUSION

“For the above and foregoing reasons, the August 11, 2010 judgment of the trial court, granting summary judgment in favor of CH2M Hill and denying the cross-motion for summary judgment filed by Central City News, is hereby vacated. The matter is remanded to the trial court for further proceedings consistent with the views expressed herein…”

CH2MHILL can now appeal the decision of the three-judge panel.  If they do not appeal, District Judge Kay Bates is likely to hold a trial on the issues directed by the Court of Appeal.

Alex St. Amant is the lead attorney for the Central City News, while Kent Lambert is leader attorney for CH2MHILL.

Photo: Tommy Higgs, former manager of CHSMHILL in Central

By Woody Jenkins, Editor, Central City News