In Louisiana, immediate family members (i.e., the surviving spouse, children, grandchildren, or siblings) of a person who died of unnatural causes are entitled to obtain, after ten years has elapsed, unlimited access to investigative records pertaining to the death. La. R.S. 44:3(F).
While the statute provides a straightforward answer to who can obtain these records and when they can be requested, the element of how the information can be accessed created complications for Joel Porter. Record requests must accord with the limitations defined in other applicable laws, for example, Louisiana Code of Evidence, articles 507 and 508, explaining how attorneys can be approached about privileged information.
In 2015, pursuant to his status as an immediate family member, Porter sought the records associated with his wife’s murder investigation. The Baton Rouge Police Department (BRPD) resisted because – now, almost thirty years after the crime – the case was being reopened, and Porter was considered a suspect. However, the state district court determined that BRPD must honor Porter’s request based on the requirements of R.S. 44:3(F). Furthermore, BRPD was required to cooperate with the Attorney General’s office to produce any additional files within its possession that related to Porter’s request.
What followed was not a dispute over whether Porter could access the records but how doggedly he and his lawyer could enforce the matter. Though BRPD had already sent a package of information containing files from the state police, the latest crime lab reports, and records from the Attorney General’s office, Porter now wanted to subpoena the Assistant Attorney General and office to determine if BRPD had fully complied with the district court’s order.
The Assistant Attorney General, Matthew Derbes, raised a motion to quash the subpoena because it violated the Louisiana Code of Evidence requirements, articles 507 and 508. Specifically, a non-party attorney shall not be questioned for information regarding a past or present client until a contradictory hearing is held to determine whether the information is protected, e.g., by attorney-client privilege.
The First Circuit Court of Appeal agreed that Derbes had correctly asserted his right to a contradictory hearing, with article 508 being the salient reference because Porter’s case against BRPD was a civil matter. However, the First Circuit was not fully aligned with the Attorney General’s office on resolving the current dispute, finding the latter’s argument for “judicial notice” invalid. This strategy could have eliminated the subpoena altogether if the Court of Appeals recognized as an undisputed fact that the Attorney General’s office provided BRPD with the entirety of the required records. This, however, would be the equivalent of claiming that the legal sufficiency of a private exchange of records was an issue within the “common knowledge of every person of ordinary understanding and intelligence,” which precedent does not support. See Dufresne; Miranne.
Instead, the Court of Appeal remanded the case to the district court, advising the proper course of action would be for Porter’s side to send the Attorney General’s office a single interrogatory: did you provide to BRPD all the items to which Porter is entitled, pursuant to La. R.S. 44:3(F), that are within your physical control and possession?
Though we have only provided a portion of Porter’s story, the lesson is clear: he knew what he was entitled to receive under the law and wanted it to be administered fairly. At Berniard Law, we understand the same is true for you, and we have the best knowledge to help you through a record request – or any issue involving the wrongful death of a loved one – should you ever need our legal services.
Additional Sources: Joel Porter vs. Baton Rouge Police Department
Written by Berniard Law Firm Blog Writer: Emily Toto
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