August/September 2023

LEGAL BRIEFS
Legislative Session Expands Sunshine Laws
US Supreme Court Justice Louis D.
Brandeis, a towering legal and judicial
figure who largely shaped American
jurisprudence, noted, “sunlight is said to
be the best of disinfectants;” Dalai Lama
opined, “A lack of transparency results in
distrust and a deep sense of insecurity;”
and Founding Father Patrick Henry famously
declared, “The liberties of a people
never were, nor ever will be, secure,
when the transactions of their rulers
may be concealed from them.”
Louisiana’s Public Records Law and
Open Meetings Law are rooted in these
concepts, and flow from the principle
articulated in Article XII, Section 3 of the
Louisiana Constitution: “No person shall
be denied the right to observe the deliberations
of public bodies and examine
public documents, except in cases
established law.”
Nearly every legislative session, there
are bills that would alter aspects of one
or both of these “Sunshine Laws,” but
the 2023 Regular Session ushered in
substantive changes of which municipal
leaders should be aware.
It has long been the case that a public
records custodian may charge a requestor
for making copies of public records
and may also demand payment
in advance of providing the responsive
records to the requestor. Last year, the
law was tweaked to specifically provide
that such reproduction fees may include
the transmission of electronic copies of
public records (i.e., providing records
via email, shared cloud-based apps, and
more). Admittedly, the fee schedule for
electronic transmission of electronic
records can be hard to promulgate, as
electronically stored data can be difficult
to paginate. Nonetheless, the law
empowers custodians to charge for
both hard-copy and electronic reproduction
of records.
This year, the legislature again amended
the Public Records Law to add a new
mandate: “Any custodian who elects to
establish and collect such fees shall establish
a reasonable fee schedule and
post the schedule where it can be readily
accessed by the public.” (Act 247 of
2023) This means that any municipality
who wishes to charge a fee for the reproduction
of records, whether by hard
copy or electronic means, MUST have a
clearly defined fee schedule, and must
further make that fee schedule “readily
accessible” to the public. This would
certainly include having the fee schedule
readily available at municipal buildings
and on the municipality’s website.
In short, use all reasonable diligence to
make the fee schedule easy to find for
anyone seeking to access public records.
The Open Meetings Law sustained an
even greater shift. Act 393 of 2023 added
two new obligations for municipalities,
both rooted in ADA-recognized disabilities.
Every municipal government
must now adopt rules, regulations, and
procedures to accommodate participation
in their public meetings by members
of the public with disabilities recognized
by the Americans with Disabilities
Act; AND the municipality must also
adopt rules, regulations, and procedures
to allow any member of the municipal
board of aldermen/council with an
ADA-recognized disability to participate
and vote via electronic means. Further,
if a member of the body is participating
remotely under this new provision, it automatically
triggers a requirement that
the municipality open up public participation
via “electronic means,” which is
broadly defined to include teleconferencing
and/or video conferencing.
To assist our members in complying
with these new ADA-based open meetings
requirements, the LMA will publish
model guidance on our website
under the “Publications” tab, which will
be available starting September 1. The
full text of both legislative acts may be
found at www.legis.la.gov under the
“Bills” tab.
Editor’s Note: The information provided
in this column is not a replacement for
consultation with your own municipal
attorney, and it should not be considered
legal advice for any particular case or
situation.
by Karen Day
White
LMA Executive
Counsel
White is a member of the LMA Legislative
Advocacy Team and can be reached at
kwhite@lma.org.
LMR | AUGUST/SEPTEMBER 2023 Page 9