A state judge ruled Monday for local news website The Lens in its public records lawsuit seeking copies of so-called “fake subpoenas” issued by the Orleans Parish District Attorney’s Office.
Civil District Court Judge Kern Reese said the district attorney must turn over copies of the documents, which resembled genuine court-ordered subpoenas but did not have a judge’s blessing, as long as they were issued in since-closed cases or cases that were not accepted for prosecution.
Reese said prosecutors would not need to disclose documents from open criminal cases, pointing to an exemption in the state public records law.
"I understand the burdens involved. I understand the labor considerations involved," Reese said after a trial that lasted several hours. "Nonetheless, the office of the district attorney is a public agency."
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The District Attorney’s Office can appeal the decision. A spokesman for the agency did not immediately reply when asked whether it would do so.
The "fake subpoenas" have generated controversy over how New Orleans prosecutors try to persuade reluctant witnesses to testify. Last week, a group of plaintiffs who received the documents — which are no longer in use — sued the District Attorney's Office in federal court seeking financial damages.
The Lens, a nonprofit news website, filed a separate lawsuit in May seeking copies of the letters after the District Attorney's Office rejected its public records request. The district attorney argued the request was too broad because it would force prosecutors to comb through thousands of case files.
The District Attorney's Office accepts between 6,000 and 8,000 criminal cases a year and rejects another 1,500 cases, David Pipes, the chief of trials for the office, testified Monday. He said the office would need to go through all of those files to find the disputed documents.
"Our office does not really use any sort of electronic file storage or electronic file software," he said. "Essentially, we’re using cutting-edge, 19th-century technology. It’s a physical file."
Reese said that as a public servant, he knows how challenging it can be to respond to public records requests. But the District Attorney's Office is still a government agency with a duty under the law, he said.
“I hate to burden somebody, but somebody’s going to have to do it," he said.
Pointing to the Civil District Court's creaky elevators, the judge also acknowledged the argument from attorneys for the district attorney that the request was one more burden for an agency still reeling from $600,000 in budget cuts imposed by the city.
"I understand the budget limitations as well, because I also work for a public agency in Orleans Parish. If you’ve ridden our elevators, you understand that," he said.
The judge said the document disclosures, which cover a period from January 2016 to May 2017, must begin within 30 days.
The Lens was represented in court by New Orleans attorney Scott Sternberg, who also works as a lawyer for The Advocate.
The American Civil Liberties Union of Louisiana filed a separate lawsuit against the District Attorney's Office seeking the names of prosecutors who used the fake subpoenas. Civil District Judge Nakisha Ervin-Knott ruled in favor of the group in July, but the District Attorney's Office is appealing her decision. The 4th Circuit Court of Appeal is set to hear arguments on Nov. 7.
Meanwhile, the MacArthur Justice Center of New Orleans also has filed a suit seeking copies of the fake subpoenas. That suit has not yet reached trial.
Lens editor Steve Myers issued this statement after Reese's ruling: "We’re thrilled Judge Reese recognized that the public has the right to see these misleading documents. Today’s testimony showed that the DA’s Office really didn’t try to find the records we sought before sending us a letter denying our request.
"We remain concerned that the DA’s use of fake subpoenas will remain unknown in open cases. If the DA’s Office had followed the law in obtaining genuine witness subpoenas, those documents would be on file with the clerk of court — regardless of whether the cases are open or closed. But it didn’t, and it is the only agency with these records. We don’t think the DA’s Office should be able to use an exemption to the public records law to conceal its use of these potentially illegal documents."
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