STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 

### NO. 2021 CA 0578 TERREBONNE PARISH CONSOLIDATED GOVERNMENT VERSUS 

### DUVAL, FUNDERBURK, SUNDBERY, RICHARD & WATKINS, APLC AND STANWOOD R. DUVAL, ST. MARTIN & BOURQUE, 

### LLC AND CHARLES C. BOURQUE, JOSEPH L. WAITZ, JR., DISTRICT ATTORNEY TERREBONNE PARISH, 32ND JDC Judgment Rendered: On Appeal from the 32nd Judicial District Court Parish ofTerrebonne, State of Louisiana Vi No. 188363 

### FEB 18 2022



### The Honorable Randall L. Bethancourt,Judge Presiding

Julius P. Hebert, Jr. Brian J. Marceaux 

### Derick A.Bercegeay 

### Harley Papa Houma, Louisiana and 

### Patrick H.Yancey Houma, Louisiana Christopher H. Riviere William N. Abel Todd M. Magee Riviere Abel Thibodaux, Louisiana
Danna E. Schwab Patricia Reeves Floyd Houma, Louisiana Attorneys for Plaintiffs/Appellants, Terrebonne Parish Consolidated Government, Julius P. Hebert, Jr., 

### and PatrickYancey

Attorneys for Defendant/Appellee, Joseph L. Waitz, Jr., in his official 

### capacity as District Attorney for Terrebonne Parish

Attorneys for Defendants/Appellees, 

### Duval, Funderburk, Sundbery, Richard & Watkins, APLC, Stanwood R. Duval, St. Martin & Bourque, LLC, and Charles C. Bourque

SDonald T. Carmouche

Victor L. Marcello John H. Carmouche William R. Coenen, III Brian T. Carmouche 

### Todd J. Wimberley Ross J. Donnes D. Adele Owen Leah C. Poole Caroline H. Martin Christopher D. Martin Michael L. Heaton Baton Rouge, Louisiana Attorneys for Defendants/Appellees, Talbot, Carmouche & Marcello, APLC, John H. Carmouche, and Victor L. Marcello

E3EMEM3

BEFORE: LANIER, WOLFE, AND BURRIS,, JJ.

The Honorable William J. Burris, retired, is servingpro tempore by special appointment of the Louisiana Supreme Court. NWOLFE, J. Terrebonne Parish Consolidated Government (TPCG) appeals the trial court' s judgment that sustained exceptions of no cause of action and dismissed its claims asserted under the Louisiana public records law. We affirm in part and reverse in
part. FACTS 

### In January 2019, 

### the Secretary for the Louisiana Department of Natural Resources ( DNR),

### appointed Joseph L. Waitz,the District Attorney forTerrebonne Parish, as his special designee under Louisiana' s State and Local Coastal Resources Management Act of 1978 ( SLCRMA). SLCRMA, set forth in La. R.S. 49:214.21 et seq., 

### generally establishes a permitting program for the use of coastal resources 

### within Louisiana's coastal zone and authorizes the imposition ofcivil liability and damages, including environmental restoration measures, forviolations. See La. R.S. 49:214.30A( 1); La. R.S. 49:214.36E; see also Parish of Plaquemines v. Chevron USA, Incorporated, 7 F. 4th 362, 365-66 ( 5th Cir. 2021). The appointment letter 

### explained that in 2016, Louisiana' s Governor and Attorney General urged parishes with potentially significant SLCRMA claims to retain counsel and begin an evaluation oftheir damages to be used in the event offuture settlement negotiations; however, 

### the preliminary work done by Terrebonne Parish appeared to be 

### inadequate. Thus,the DNR secretarydetermined itwas appropriateto appointWaitz his special designee for the limited purpose ofinvestigating any historic SLCRMA violations byoil andgas exploration and production companies inTerrebonne Parish and evaluating resulting damages. Waitz was instructed to prepare a damage model 

### and report his findings to the DNR secretary. Waitz accepted the appointment and, pursuant thereto, entered a legal services 

### contract with the law firms of Duval, Funderburk, Sundbery, Richard & Watkins, APLC, 

### represented by Stanwood R. Duval, and St. Martin & Bourque, LLC, 3

### represented byCharles C. Bourque. The firms were engaged to representWaitzwith



### regard to SLCRMA claims, including claims for land loss, environmental damage, restoration costs, and injunctive reliefagainst oil, gas, and pipeline companies. The 

### contracted legal services entailed an investigation to determine whetherany persons or legal entities had violated SLCRMA as applied to uses or activities in the coastal
zone ofTerrebonne Parish. The law firms were directed to make recommendations 

### to Waitz regarding the appropriate legal actions to be taken to pursue claims. The contract provided that one of its principal purposes was " to ensure that the parish of Terrebonne is protected to the fullest extent possible in the event that general, 

### statewide or regional litigation or settlement discussions occurwhich may result in recovery or reliefto which [Terrebonne Parish] may also be entitled." The contract set forth the parties' agreement that "all reasonable and appropriate efforts [would] 

### be made to achieve a negotiated settlement ofany and all disputes with regard to SLCRMA claims]"; 

### however, only Waitz would have the right to accept or reject any settlement offers. The contract authorized the law firms to engage the services of associate counsel under the same contractual terms. 

### TPCG,Terrebonne Parish' s governing body,objectedto Waitz' s appointment under the SLCRMA provisions. 

### According to TPCG, the DNR secretary lacked 

### authority to appoint Waitz and the appointment unconstitutionally violated the separation ofpowers doctrine. 

### TPCG furthermaintained thatthe resulting contract between Waitz and the Duval and St. Martin law firms violated the Louisiana 

## Constitution by creating a monetary obligation forTPCG without following proper procedures. 

### Thus, TPCG filed suit against DNR,the secretary ofDNR,and Waitz, 

### seeking declaratory and injunctive relief, including a declaration that the parish attorney for Terrebonne Parish has the authority to represent TPCG with regard to civil claims under SLCRMA. See Terrebonne Parish Consolidated Government

4v. Louisiana Department of Natural Resources, 2021- 0486 ( 

### La. App. 1st Cir.

12/30/21), So.3d ( 2021 WL 6327370, * 1- 2). After TPCG filed that suit, attorneys for TPCG submitted a public records 

### request to Waitz, generally seeking documents relating to Waitz's appointment as the DNRsecretary' s special designee; any documents relatingtothe investigation of SLCRMA claims; expert reports or communications with experts pertaining to Waitz' s assignment from DNR; correspondence, documents, and contracts 

### pertaining to any legal representation on behalf ofTerrebonne Parish or the state; 

### agreements, letters, emails, or writings pertaining to Waitz's engagement of the 

### Duval and St. Martin law firms; any agreements for legal representation with any other lawfirms; any agreements for legal representation in the lawsuit against DNR; 

### and anycorrespondence withthe Attorney General orlegal opinions from anyperson related to Waitz's authority to represent DNR or Terrebonne Parish pursuant to his appointment. 

### The attorneys representing TPCG also submitted public records requests to Duval and Bourque, the respective representatives ofthe Duval and St. 

### Martin law firms, seeking documents relating to their investigation of SLCRMA 

### claims; documents relating to the legal services contract with Waitz; any and all agreements, letters, and/or writings pertaining to any legal representation between them and the law firm Talbot, Carmouche, & Marcello, APLC ( TCM); and 

### documents relatingto any legal representation byany otherattorneys with respectto SLCRMA. 

### In response to the public records request, Waitz provided his appointment 

### letterfrom the DNRsecretary, his letterofacceptance, andthe legal services contract he entered with the Duval and St. Martin law firms. Waitz advised that those were 

### the only documents maintained by his office and that any and all other requested documents were in the possession of the Duval and/or St. Martin law firms. The 

### attorneyswiththe Duval and St.Martin lawfirms eachdeniedthattheywere apublic
5

### body orthe custodian ofrecords for Waitz;therefore, each claimed no obligation to



### provide any documents underthe public records law. Later in 2019, a news article reported that TCM negotiated a $ 100 million 

### settlement agreement with the oil company Freeport-McMoRan in lawsuits filed by six coastal parishes against oil and gas companies accused ofviolating state law and damaging Louisiana's coast. According to the article, the agreement was subject to approval byTPCG and other coastal parish governments that were not parties to the 

### lawsuits but were included in the agreement because they had hired lawyers to prepare damage models in case of settlement. The article reported that TCM 

### expectedthe necessary approval, including TPCG's, byyear's end. An attorneywith TCM,John H. Carmouche,was quoted as saying "The only way that the settlement does not go through is ifpoliticians kill it[.]" 

### Following the article' s publication, TPCG' s attorneys submitted public 

### records requests to Waitz, Duval, Bourque, and a TCM attorney alleged to be its custodian of records, seeking production of any and all agreements with Freeport

### McMoRan concerning settlement of any coastal zone lawsuits. Waitz responded 

### that hewas not in possession andwas notaware ofanypublic records thatwould be responsive to the request. Like Duval and Bourque, TCM' s representative denied 

### thatTCM was subjecttothe public records lawinasmuch as itwas notapublic body or custodian thereunder and further noted that the requested documents would 

### undoubtedly be protected bythe attorney workproduct or attorney-client privilege and exempt from production. Thereafter, TPCG' s attorneys submitted additional 

### public records requests to Waitz, Duval, and Bourque, seeking any records related to negotiations, settlements, or confidentiality agreements with Freeport-McMoRan 

### that relatedto coastal issues for any parishes.

onUnsatisfied with the responses to the public records requests, TPCG, through



### its president and attorneys (collectively "TPCG" ),2 instituted this suit to enforce its alleged rights under the public records law. TPCG named as defendants: Waitz; the 

### Duval firm and Duval as its statutory custodian ofrecords; the St. Martin firm and Bourque as its statutory custodian ofrecords; and TCM and John H. Carmouche as its statutory custodian ofrecords.' 

### TPCG alleged that as the district attorney, Waitz 

### is both a public official and an instrumentality ofthe state, which subjects him to the public records law. TPCG alleged that because oftheir status as special counsel to Waitz, the Duval and St. Martin firms were Waitz' s agents and instrumentalities of 

### DNR, making them subject to the public records law. TPCG averred that the six coastal parishes involved in the lawsuit against Freeport-McMoRan are public bodies whose settlement documents are public records and, as the contracted agent 

### for those public bodies, TCM is a public body having custody or control ofpublic

records. Thus, TPCG contended, the defendants were obligated to produce the requested public records, which they arbitrarily withheld. TPCG sought a writ of 

### mandamus, declaratoryjudgment, as well as injunctive relief. In response, each of 

### the defendants filed multiple exceptions, including exceptions ofno cause ofaction. The trial court held a hearing on TPCG' s request forwrit and mandamus and the defendants' exceptions, then tookthe matters under advisement.' The trial court

2 After exceptions of no right of action were filed that challenged whether TPCG was the proper party plaintiff,the petition was amended to add as plaintiffs the attorneys who made the public records requests on TPCG' s behalf. Our review is limited to the judgment before us that sustained exceptions of no cause of action. For simplicity, we refer to the plaintiffs herein as TPCG"; 

### however, in doing so, we make no comment on any issues regarding any objection to any plaintiffs right of action. 3 Victor L. Marcello, individually and in his capacity as vice president ofTCM, was later added as a defendant.
4 In the suit TPCG filed against DNR challenging Waitz's appointment, the trial court also sustained exceptions of no cause of action and dismissed TPCG' s action against the defendants. In a related appeal, another panel of this court found that TPCG set forth a cause of action for declaratory relief in that suit, reversed the trial court' s judgment, and remanded the matter for furtherproceedings. See Terrebonne Parish Consolidated Government, So.3d at ( 2021 WL 6327370 at * 4). 7

### provided extensive reasons for sustaining the exceptions ofno cause ofaction filed

bythe defendants. A finaljudgment sustaining the exceptions ofno cause ofaction 

### and dismissing all claims asserted inthis suitwas signed on March 27, 2021. TPCG

now appeals. DISCUSSION 

### The exception ofno cause ofaction tests the legal sufficiency ofthe petition 

### by determining whether the law affords a remedy on the facts alleged. Hayes v. 

### University Health Shreveport, LLC,2021- 01601 (La. 1/ 7/22), So.3d , 2022 WL 71607, * 3). In the context ofthe exception, a " cause ofaction" is defined 

### as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. Carrv. Sanderson Farms, Inc.,

### 2016- 1064 (La.App. 1st Cir.2/ 17/ 17), 

### 215 So.3d 437, 440. No evidence may be introduced to support or controvert the exception. La. Code Civ. P. art. 931. 

### The exception is triable solely on the face of the petition and any attached documents, with the well - pleaded allegations of fact accepted as true. See Reynolds v. Bordelon, 2014-2362 ( La. 6/30/ 15), 1.72 So.3d 589, 594- 95, Carr, 215 So.3d at 440. The burden of 

### demonstrating that a petition failsto state a cause ofaction is onthe mover. Kunath
v. Gafford, 2020-01266 (La. 9/30/21), So.3d , 

### n.6 (2021 WL 44725709 4 n.6) The issue atthe trial ofthe exception is whether, on the face ofthe petition, the plaintiff is legal entitled to the reliefsought. Hayes, So.3d at ( 2022 WL 71607, * 3). Because the exception ofno cause of action raises a question of law and the 

### trial court's decision is based solely on the sufficiency ofthe petition, reviewofthe trial court's ruling on the exception is de novo. Scheffler v. Adams & Reese, LLP, 2006- 1774 ( La. 2/22/07), 950 So.2d 641, 647. 

### The pertinent inquiry is whether, in 

### the light most favorable to the plaintiff, and with every doubt resolved in the plaintiffs favor,the petition states any valid cause ofaction for relief. Scheffler, 8950 So.2d at 647. 

### Every reasonable interpretation must be accorded the language



### used in the petition in favor ofmaintaining its sufficiency and affording the plaintiff the opportunity ofpresenting evidence at trial. Kunath, So.3d at n.6 ( 2021 WL 4472570, * 4 n.6). 

### The right of access to public records is guaranteed by the Louisiana Constitution and the public records law. La. Const. art. XII, §3; La. R.S. 44: 1, et seq. 

### Any person may obtain a copy of any public record, in accordance with the public records law, except as otherwise provided by that or other specific law. La. R.S. 44:31B. 

### These constitutional and statutory rights of access to public records 

### should be construed liberally,and anydoubt mustbe resolved in favorofthe public' s right to see. Shane v. Parish ofJefferson, 2014-2225 ( La. 12/8/ 15), 209 So.3d 726, 735. 

### Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and the custodian' s employees. See La. R.S. 44:31A; Parish of Ascension v. 

### Wesley, 2019-0364 ( La. 

### App. 1st Cir. 12/ 12/ 19), 291 So.3d 730, 735. A " custodian" 

### is the public official or head ofany public body having custody or control of a public record, or his specifically
authorized representative. La. R.S. 44: 1A(3). 

### A "public body" includes: 

### any branch, department, office, agency, board, commission, district, governing authority, political subdivision, or any committee, subcommittee, 

### advisory board, or task force thereof, any other 

### instrumentality ofstate, parish, or municipal government, including a public or quasi -

public nonprofit corporation designated as an entity to perform a governmental or proprietary function, or an affiliate of a housing authority. La. R.S. 44: 1A( 1). TCM, the Duval and St. Martin law firms, and the individual attorneys who 

### are members ofthose firms and named as defendants, contend that TPCG fails to 

### state a cause ofaction against them because they are private law firms or attorneys. They further contend thatthey are neither public bodies nor custodians ofrecords. ETPCG does not dispute that these defendants are private law firms and
attorneys. 

### However, TPCG contends that whether a party is an " instrumentality of
state, parish, or municipal government," 

### and therefore a " public body" as defined by La. R.S. 44: 1 A(1), 

### is determined by examining the connection betweenthe particular governmental 

### body and the potential 

### instrumentality. In conducting this
examination, TPCG contends the court must consider whether the potential 

### instrumentality performs governmental functions for a governmental body and involves public funds. TPCG argues that under the facts ofthis case, the Duval and St. Martin firms, " 

### and possibly TCM," are instrumentalities of Waitz, a public 

### official undisputedly subjecttothe public records law;therefore,all ofthese attorney and law firm defendants should be considered public bodies and custodians of

records. 

### TPCG further argues that in performing services under the legal services 

### contract with Waitz, the Duval and St. Martin firms are performing functions of DNR as well as TPCG, which further subjects them to the public records law. 

### The trial court rejected TPCG's arguments, explaining: TPCG relies on a handful of cases, which are not applicable. TPCG 

### repeatedlycites Hatfieldv. Bush, 572 So.2d588, 591 [( 

### La.App. 1st Cir. 1990)]. Hatfieldv. Bush dealt with a public records request to a District 

### Attorney. 

### It established that they could not extend a public records 

### requestto [a] DistrictAttorney norcouldthey extend such a requestto the private law firms and private attorneys who are not public officials. 

### Similarly, State ex rel. Guste v. NICHOLLS Coll. Found., 564 So.2d 682, 685 [( La. 1990),] 

### does not apply in this case at hand. That matter 

### concerned a request for records regarding payments made by one nonprofit educational corporation to another from public funds obtained 

### from students atNicholls State University. The court held that it could not determine on the record whether the Defendants were in fact a 

### Public body". However, the court found that the funds were public 

### funds, and that the federation which paid the funds to the Defendant 

### were a public body. Therefore, the State was entitled to inspect the books and records but were limited to those related to receipts and expenditure ofpublic funds. 

### As such, Nicholls does nothave a bearing on the case at hand. 

## Forsimilar reason, New Orleans Bulldog Societyv. La.Societyforthe Prevention ofCruelty toAnimals, [2016-1809 (La. 5/3/ 17),] 222 So.3d 

### 679, 681, does not apply in this case as well. In that matter, the Court 

### consideredwhetherthe Louisiana Society forthe Prevention ofCruelty 10to Animals, otherwise known as " LSPCA", was subject to the Public Records Law. 

### As shown in that matter, one ofthe LSPCA' s primary functions was to provide mandated animal control services to the City 

### ofNew Orleans in accordance with a City Ordinance. The court found that the [ LSPCA] " 

### acts under color of City authority" through its investigation and enforcement of Chapter 18 infractions, issuance of citations, and appearance in court on related matters of animal control. Id. at 685. As such the LSPCA was considered a " quasi - public 

### corporation designated as an entity to perform a governmental or 

### proprietary function" underthe Public Records Law. Unlike in the case[ s] 

### cited by TPCG, [the Duval and St. Martin law 

### firms] are private firms with no substantial ties or relationships to any public entity. 

### They are not transformed into public bodies solely as a result of their legal representation of Mr. Waitz. 

### They are not instrumentalities" of the State of Louisiana. The legal [ s] ervices 

### c]ontract, which is the only casual linkage between the private firms and Mr. Waitz, identifies Mr. Waitz as the " Client" and [the Duval and St. Martin law firms] as his " Attorneys." Neither [the Duval nor St. 

### Martin law firm has] entered into any contracts with the State, nor are 

### they acting as agents or instrumentalities ofthe State orperforming any functions for the State. We agree with the trial court' s well - reasoned analysis. TPCG has not alleged 

### facts to establish that the Duval and St. Martin law firms are anything other than private law firms hired to represent Waitz. TPCG' s argument that their contractual association with Waitz (or DNR) subjects these private law firms and attorneys to 

### thepublic records lawis unfounded and lacks legal support. Notably,such afinding could have far-reaching ramifications, subjecting private law firms throughout the state to the public records law based on their representation of public entities or
officials. Based on our de novo review, we find that TPCG has failed to allege facts that state a cause ofaction under the public records law against the Duval and St. Martin law firms, or Duval and Bourque, the individual attorneys named as custodian of records for those firms. TPCG' s claims against TCM are even more attenuated than those against the 

### Duval and St. Martin law firms, as they are based on the bare allegations that TCM represented other parishes in lawsuits against Freeport-McMoRan. When accepted

11as true and viewed in the light most favorable to TPCG, none of the alleged facts



### support a finding that TCM, itself,is a public body or custodian ofpublic records under the public records law. Thus, TPCG has also failed to state a cause ofaction 

### against TCM or Carmouche, the individual attorney named as TCM' s custodian of

records. 

### Waitz, however, is the District Attorney for Terrebonne Parish and special designee ofthe DNR secretary. 5 

### In contrast to the private law firm and attorney defendants, Waitz does not dispute that he is subject to the public records law. 

### Rather, Waitz maintains that he complied with TPCG' s public records requests by providing all responsive, non - privileged, and non - confidential documents in his possession. Waitz asserts that TPCG fails to state a cause ofaction against him for production of the other requested documents because those records are " plainly 

### exempted" fromthe public records lawasprivileged attorneyclientcommunications and attorney work product.' Article 12, section 3 ofthe Louisiana Constitution mandates that "[ n] o person shall be denied the right to ... examine public documents, except in cases established 

### by law." 

### The right ofaccessto public records is fundamental; therefore, access may 

### be denied onlywhen the law specifically and unequivocally denies access. See La. R.S. 44:4. 1; Angelo Iafrate Construction, L.L.C. v. State ex rel. Department of Transportation & 

### Development,2003-0892 (La.App. 1stCir.5/ 14/04), 879 So.2d

5 As previously indicated, TPCG has challenged the appointment in a separate suit that has now been remanded to the trial court for further proceedings. See Terrebonne Parish Consolidated Government, So.3d at ( 2021 WL 6327370 at * 4). Our analysis in this 

### appeal is based solely on the record before us and specificallythe facts alleged inthe petition filed in this suit, which includes the fact that Waitz was appointed as special designee ofthe DNR 

### secretary. Nothing in this opinion should be construed as an opinion with regard tothe propriety ofthat designation.
6 We note that in responding to TPCG's public records requests, Waitz did not state thatthe requested documents were exempt from the Public Records Law. In response to the original request, Waitz stated the unproduced documents were not in his possession and, in response tothe request for agreements with Freeport-McMoRan, Waitz stated he did not possess and was not aware ofany documents or public records that would be responsive to the request.
12250, 254, writ denied, 2004- 1442 ( La. 9/24/04), 882 So.2d 1131. Public records



### requests must be analyzed liberally in favor of free and unrestricted access to the

record. 

### Hilliard v. Litchfield, 2001- 1987 ( La. App. 1st Cir. 6/21/ 02), 822 So.2d 743, 746. 

### Exemptions to the public records law must be narrowly construed, with 

### any doubt resolved in favor ofthe public' s right ofaccess. See Landis v. Moreau, 2000- 1157 ( La. 2/21/ 01), 779 So.2d 691, 694; Angelo Iafrate Construction, 879 So.2d at 257-58. The enforcement provision of the public records law is set forth in La. R.S. 

### 44:35, which pertinently provides: A. 

### Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions ofthis Chapter ... 

### may institute proceedings forthe issuance 

### of a writ of mandamus, injunctive or declaratory relief,together with attorney fees, costs and damages as provided for bythis Section.... B. 

### In any suit filed under Subsection A above, the court has 

### jurisdiction to enjoin the custodian from withholding records orto issue awrit ofmandamus ordering the production ofany records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. 

### The court may view the documents in controversy in camera before reaching a decision.... See Misita v. St. Tammany Parish Government, 2018- 1595 ( La. App. 1st Cir. 9/ 11/ 19), 286 So.3d 440, 444, writ denied, 2019-01877 ( La. 1/ 28/20), 291 So.3d 1060. In support ofhis argument, Waitz relies on La. R.S. 44:4. 1C, which provides: The provisions of [the public records law] 

### shall not apply to any writings, records, or other accounts that reflect the mental impressions, conclusions, opinions, or theories ofan attorney or an expert, obtained or prepared in anticipation of litigation or in preparation for trial. We reiterate that our review is limited to the facts alleged in the petition and attached documents. TPCG' s public records requests, which were attached to its 

### petition, requested a multitude ofitems, including documents broadly described as permits, non -

permits, aerial photographs, damage assessments and models, written

13agreements, contracts, writings, expert reports and communications, and attorney general opinions. Thus, the issue presented is whether, based on the terms used to 

### identify the documents in the public records requests alone, it can be definitively determined that these documents, 

### in their entirety, are exempt from the public records law under La. R.S. 44:4. 1. C. We conclude that this determination cannot be 

### made at this juncture, based solely on the allegations of the petition and attached documents. 

### As described in the public records requests, it appears likely that some ofthe requested documents are exempt from production under La. R.S. 44:4. 1. C; however, 

### it appears just as likely that some are not. For example, TPCG requested aerial photographs and the Louisiana Supreme Court " 

### has held that the attorney work product exception to general discovery refers only to writings and does not include tangible things such as ... photographs." Landis, 779 So.2d at 697. Furthermore, 

### the factthat a requested record may contain nonpublic material does not necessarily mean accesstothe entire record is restricted. Times Picayune Pub.Corp.v.Board of Supervisors of Louisiana State University, 2002-2551 ( La. 

### App. 1st Cir. 5/9/03), 845 So.2d 599, 605-06, writ denied, 2003- 1589 ( La. 9/5/03), 852 So.2d 1044. 

### The custodian has a duty to segregate public records from other records and make the public record available for examination. See La. R.S. 44: 33A( 1); Vandenweghe v. Parish of Jefferson, 2011- 52 ( 

### La. App. 5th Cir. 5/24/11), 70 So.3d 51, 58, writ denied, 2011- 1333 ( La. 9/30/ 11), 71 So.3d 289. 

### Additionally,the privilege created by the work product doctrine is qualified, not absolute. Landis, 779 So.2d at 697. 

## Asthe party seeking to prevent disclosure,Waitz bearsthe burden ofproving that the records are exempt from the provisions ofthe public records law. See La. R.S. 44:31B(3); 

## La.R.S. 44:35B; Kylev. Perrilloux,2002-1816 (La.App. 1st Cir. 11/ 7/03), 

### 868 So.2d27, 30. Anyexemption tothe public records law is in derogation
14

### ofthe public' s right to be reasonably informed and must be narrowly interpreted.

Stevens v. St. 

### Tammany Parish Government, 2017-0959 ( 

### La. App. 1st Cir. 7/ 18/ 18), 264 So.3d 456, 461, writ denied, 2018-2062 (La. 2/ 18/ 19), 265 So.3d 773. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public' s right to see; to allow

otherwise would be an improper and arbitrary restriction on the public' s
constitutional rights." Shane, 209 So.3d at 735. In light of these legal precepts, 

### Waitz's argument that every requested document is plainly exempt from the public records law pursuant to La. R.S. 44:4. LC fails. Waitz further cites La. R.S. 44:4( 15), which provides that the public records 

### law does not apply "[

### t]o any pending claims orpending claim files in the custody or control of the office of risk management, division of administration, or similar 

### records in the custody ofany municipality or parish[.]" This argument appears to be raised for the first time on appeal. As a general rule, appellate courts will not 

### consider issuesthatwere not raised in the pleadings,were not addressed bythetrial court, or are raised for the first time on appeal. See Uniform Rules of Louisiana Courts of Appeal, Rule 1- 3. Further, Waitz does not explain how the requested 

### documents can be considered pending claims or files in the custody ofthe office of riskmanagement orsimilar records in the custody ofa municipality orparish. Thus, we do not consider the argument further. After de novo review of the facts alleged in the petition and attached 

### documents,when viewed inthe light mostfavorable to TPCG and with every doubt resolved in TPCG's favor, we find that TPCG has stated a cause of action against Waitz under the public records law. Whether a plaintiffwill prevail on the merits is
not an appropriate consideration on an exception of no cause of action. Bergen 

### Brunswig Drug Company v. Poulin, 93- 1945 ( La. App. 1st Cir. 6/24/94), 639 So.2d 453, 458. Thus, we remand this matter to the trial court for further 15

### proceedings, including consideration ofTPCG's argument that Waitz is the owner

or is in control of the requested legal files in the possession of his attorneys, the Duval and St. Martin law firms. 

### On remand, the trial court has the opportunity to 

### hold a contradictory hearing,' the discretionary authority to conduct an in camera 

### review ofthe documents, and the ability to determine whether the documents are exempt from disclosure. See La. R.S. 44:35B; Landis, 779 So.2d at 698; Vandenweghe, 70 So. 3d at 59. CONCLUSION 

### For the foregoing reasons, we affirm the trial court'sjudgment insofar as it sustained exceptions ofno cause ofaction and dismissed TPCG' s claims against the 

### defendants Duval, Funderburk, Sundbery, Richard & Watkins, APLC; Stanwood R. Duval; St. Martin & Bourque, LLC; Charles C. Bourque; Talbot, Carmouche & Marcello; John H. Carmouche; and Victor L. Marcello. We reverse the trial court' s judgment insofar as it sustained the exception no cause of action and dismissed TPCG' s claims against Joseph L. Waitz, Jr. Costs of this appeal in the amount of 4,316.35 are assessed to Joseph L. Waitz, Jr. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

7 

### Sincethetrial courtfound TPCGfailedto state acauseofaction asto anyofthedefendants, 

### we find no merit in TPCG's arguments on appeal thatthe trial court erred in failing to conduct a contradictory hearing before dismissing the claims. 

### See Chapman v. District Attorney, 2005- 0577 (La. App. 1 st Cir. 3/29/06), 

### 934 So.2d 128, 130; Wallace v.Ware, 94-2204 (La.App. 1st Cir. 6/23/95), 657 So.2d 734, 737. Moreover, we find the arguments moot since this matter is being remanded forfurther proceedings. 16

# 4ERREBONNE PARISH

CONSOLIDATED GOVERNMENT VERSUS DUVAL, FUNDERBURK, SUNDBERY, RICHARD & WATKINS, APLC AND STANDWOOD R. DUVAL, ST. MARTIN & BOURQUE, LLC AND CHARLES C. BOURQUE, JOSEPH L. WAITZ, JR., DISTRICT ATTORNEY TERREBONNE PARISH, 32ND JDC NUMBER 2021 CA 0578

COURT OF APPEAL FIRST CIRCUIT

BEFORE: LANIER, WOLFE, AND BURRIS,, Ji.STATE OF LOUISIANA

LANIER, J., AGREES IN PART, DISSENTS IN PART, AND ASSIGNS REASONS. 

### I agree with the majority as to the reversal ofthe trial court'sjudgment insofar as it sustained the exception no cause ofaction and dismissed TPCG's claims against Joseph L. Waitz, Jr., and as to the affirmance ofthe trial court'sjudgment insofar as it sustained an exception ofno cause ofaction and dismissed TPCG' s claims against the defendant Talbot, Carmouche & Marcello; and John H. Carmouche. 

### However, I respectfully disagree with the majority asto the affirmance ofthe trial court's judgment insofar as it sustained exceptions of no cause of action and dismissed TPCG' s claims against the defendants Duval, 

### Funderburk, Sundbery, Richard & Watkins, APLC; Stanwood R. Duval; St. Martin & Bourque, LLC; and Charles C. Bourque. 

### I believe that they may qualify as custodians ofpublic records under the definition of La. R.S. 44: IA(3), which defines custodian as " the public 

### official or head ofany public body having custody or control ofa public record, or 

### a representative specifically authorized by him to respond to requests to inspect any
such public records," 

### The majority recognized that Waitz is a special designee of 

### the DNR secretary. Therefore, any attorney representing Waitz could be considered a custodian for purposes of La. R.S. 44: 1A(3). 

### Thus, I respectfully dissent in part.

1 The Honorable William J. Burris, retired, is servingpro tempore by special appointment ofthe Louisiana Supreme Court.