On Jan. 10th, inside of a courtroom in the 19th District Court in downtown Baton Rouge, Judge William Morvant presided over what may have seemed, at first glance, like a routine public records lawsuit — but even before it was heard, the case had already attracted significant media attention. The interest had very little to do with which records were in dispute; the concern was about the argument raised by the defendant, Louisiana state Attorney General Jeff Landry.
Unbeknownst to anyone in the audience of Judge Morvant’s courtroom, there was another person interested in the proceedings. His name was one of several on the plaintiff’s witness list and had been disclosed more than a month before the hearing, but Landry’s legal team didn’t seem to think much about it.
They certainly didn’t anticipate the man would drive back to Louisiana on his own dime just to be there, waiting in a nearby room just in case he got called to the stand.
Treading in deepwater.
More than two years ago, on Sept. 30, 2016, Scarlett Martin, a Tulane graduate who had once worked as an organizer for the Gulf Restoration Network in the aftermath of the BP-operated Deepwater Horizon oil spill, requested all correspondence between state attorney general Jeff Landry and several of his key staffers with Louisiana Oil and Gas Association (LOGA), Louisiana Mid-Continent Oil and Gas Association (LMOGA), Louisiana Association of Business and Industry (LABI), Bold Strategies, and Chester Cedars, among others.
In the immediate aftermath of the worst environmental disaster in American history, during his first and only term in Congress, Landry made national news when he held up a sign in the middle of President Obama’s State of the Union address; the sign, which read “Drilling = Jobs,” was a protest against the administration’s temporary moratorium on new permits for offshore drilling.
While the communities he represented were still reeling from a mega-billion dollar environmental catastrophe, while fishermen saw their businesses collapse, and while children became sick because of contamination, their congressman, in a breach of decorum, demonstrated to the entire country that he was more worried about the profit margins of the wealthiest industry in human history.
All told, fewer than 350 people filed for temporary unemployment benefits as a result of the temporary moratorium on granting new drilling permits. The Deepwater Horizon explosion resulted in 4.9 million barrels of oil spilling into the gulf; 11 people had been killed and 17 were injured; the economic costs of BP’s negligence are still difficult to calculate precisely, though it is easily in the tens of billions of dollars.
The moratorium, on the other hand, had the equivalent effect of a single Walmart closure on state unemployment rates.
Scarlett Martin had ample reason to be interested, if not suspicious, about the attorney general’s cozy relationships with Big Oil and the petrochemical industry. It should not be too surprising that Landry’s office wasn’t exactly in a hurry to turn over those requested records, even if it meant breaking the law.
Martin filed two separate requests on Sept. 30, 2016. Her first request was for travel records, contracts with attorneys, and vehicles purchased.
The Bayou Brief, which has never contacted Martin and had no prior knowledge of her requests, obtained the documents Landry’s office provided her through another source. On Dec. 4, 2017, we reported on these documents, which revealed Landry had been regularly charging taxpayers for the mileage in between his commute from his home to his office.
Martin’s other request from Sept. 30, 2016, however, was at the center of the lawsuit she filed 175 days later.
Incidentally, more than a year after Martin made her request, The Bayou Brief also filed a more specific request for correspondence the Attorney General’s office had with Shane Guidry. Guidry, the multimillionaire CEO of Harvey Gulf, was not only a mega-donor to Louisiana Republican candidates and PACs and Landry’s primary political benefactor, he was also named as the head of Landry’s “Criminal Investigations Unit.”
On Feb. 15, 2018, with the assistance of Andrew Perez, a reporter from MapLight, we reported on the response we received on Dec. 22, 2017 from Luke Donovan, an attorney who worked under Landry, regarding the results of our request. Emphasis added:
After a diligent search of our records using the search terms you provided, our office has identified 37 pages of responsive records for the first portion of your request (which asked for Guidry’s e-mails) and 176 pages of responsive records for the third portion of your request (which asked for records containing my name; I was interested in how my records requests were being handled). Copies of these records are attached to this correspondence.
Furthermore, 311 pages of intra-office email records will be withheld under the deliberative process privilege and six (6) pages of email records will be withheld under the attorney-client privilege. The deliberative process privilege protects confidential intra-agency advisory opinions, disclosure of which would be injurious to the consultative functions of government. Accordingly, it is this office’s position that these 317 pages of records are not subject to disclosure.
The Louisiana Department of Justice supplied only a single email with a single word from Shane Guidry: “Wow.” It was, ironically, a response to yet another public records request filed by The Advocate.
Earlier this month, the Bayou Brief was in Judge Morvant’s courtroom, not only because we were interested in how Landry’s office would defend its actions but also because we hoped the case would expose what we had considered to be an open secret: Landry’s office routinely refuses to comply with public records requests that it determines to be politically — not legally — problematic.
According to Landry, in this particular case, his failure to comply with public records law was irrelevant, because the plaintiff, Martin, now lives in Indianapolis. Therefore, Louisiana law doesn’t apply to her, which is, in many ways, the same basic argument oil and gas companies are using to avoid paying for damaging the state’s vulnerable coast.
Jeff Landry’s defense was so comically absurd, the judge barely entertained it, sparing him civil penalties but still ordering he cover all of Martin’s legal costs, approximately $25,000. In doing so, however, Judge Morvant ensured the public would never hear the testimony of the man waiting in a back room.
The computer guy.
That morning, while people were shuffling into the courtroom, Landry’s lawyers, were frantically drafting a second motion in limine to prevent the judge from ever hearing the sworn testimony of a man who they feared would be capable of unraveling their entire defense. Their motion actually refers to two witnesses, but they were only truly concerned with one: Etienne O. Carriere, a former top-level employee of their IT Department.
According to his LinkedIn profile, for more than six years, Carriere was “solely responsible for all areas of the EDRM (electronic discovery recovery model)/ Information Governance relating to the Louisiana Department of Justice’s Electronic Discovery requests and responses for major litigation’s both Civil and Criminal pertaining to the state.”
No one knew more about how Landry’s office managed public records requests than he did.
Landry’s attorneys threw the proverbial kitchen sink at Carriere, accusing him of stealing information, breaking multiple confidentiality agreements, and violating attorney-client privilege.
It is important to remember: This was a case about public records, and despite the protestations about not having enough time to conduct depositions or discovery, they were provided more than thirty days notice.
You do not need to be a lawyer to recognize that the confidentiality agreements were not only unconscionable, they were also a brazen attempt to prevent a government employee- even a former government employee– from answering- under oath in a court of law- questions of fact. It is also absurd for the so-called Solicitor General (a job that does not exist in Louisiana law), to claim she had a perpetual attorney-client relationship with a former IT staffer.
The Bayou Brief made multiple attempts to contact Carriere for comment, but as of publication, he has yet to respond.
Yet the record speaks for itself, and the public has a right to know why Jeff Landry’s office was so terrified about what Carriere could have said, if he’d been given the opportunity.
The Deliberative Process of Delay.
The Louisiana Public Records Act (LPRA) is one of the few aspects of Louisiana law lauded across the country as a model for ensuring fairness and accountability. In Louisiana, the right to access public records is considered “fundamental,” though the sanctity of that right had been severely but temporarily weakened under the Jindal administration.
During his first term in office, as a part of his so-called “gold standard” of ethics reform, former Gov. Jindal snuck in a statutory exemption that shielded his office from turning over practically anything they didn’t want to disclose. They called it the “deliberative process exemption.” Citizens were not allowed to access public records the governor deemed to be under his review, a distortion and expansion of the work product privilege that attorneys can claim in discovery. Jindal, though, interpreted the exemption to also apply to documents his administration had possessed, even after he had concluded his “deliberation,” as long as he claimed those documents didn’t actually play a role in crafting policy.
Their efforts were transparently unconstitutional, according to the overwhelming consensus of legal scholars. For a thorough explanation, read Kevin Blanchard’s 2011 Comment in the Louisiana Law Review titled “From Sunshine to Moonshine: How the Louisiana Legislature Hid the Governor’s Records in the Name of Transparency.” On his way out of the doors on the fourth floor of the state Capitol, Jindal quietly signed a bill repealing the “deliberative process exemption.”
With Jindal out of office, the newly-elected state attorney general was keen to revive the exemption and its interpretation.
Between September 30, 2016, the day Martin filed her request, and March 24, 2017, the day she filed her lawsuit, Landry’s office resolved that the public records would begin to be provided Martin on four separate occasions, but each time there was no follow-through.
Internal correspondence confirms that there wasn’t much of a concerted effort to produce the requested documents in the timeframe provided by law. Although they acknowledged the request, the relevant records did not begin to be provided to Martin until after she filed suit on March 24, 2017.
As stated earlier, Landry filed a “no right of action” motion, arguing that because Martin was not domiciled in Louisiana, she had no right to acquire Louisiana public records.
Judge Morvant, a conservative, rebutted this argument as “novel.”
“(You) should be making that argument at the big pointy building down the road,” Morvant dismissively told Landry’s counsel, referring to the state Capitol.
The legislature had opportunities to explicitly limit the right to Louisiana citizens only, he explained, but this explicit limitation was nowhere to be found.
Here sits Louisiana, a place long notorious for political corruption, with a rare provision that does what it is supposed to do (to hold government accountable), and the attorney general hoped to drastically restrict its interpretation. What would have that argument’s acceptance spelled for out-of-state academics, journalists, and researchers? Fortunately for Martin, that argument did not stick and she was able to walk away with her litigation fees covered, estimated around $25,000.
Although Judge Morvant ruled that Landry’s office did not arbitrarily or capriciously fail to provide Martin notice of what documents would be exempt or privileged because of the great number of documents that were found by the search, that argument is directly contradicted by the evidence the court never considered and the testimony of a witness it never allowed to take the stand.
What was the state attorney general’s office doing between Sept. 30, 2016 and March 24, 2017 to respond to Martin’s request?
There’s a reason Landry’s office referred to “documents that were surreptitiously removed (by Etienne Carriere)” in its last-minute, second motion in limine.
The Damn (and Damning) Emails.
These are the emails “Solicitor General” (a phony title that does not exist under Louisiana law) Liz Murrill did not want the judge or the public to consider, and they clearly, unequivocally demonstrate the Louisiana Department of Justice never bothered to even consider Martin’s second request until after she filed suit, 175 days later.
Liz Murrill, in correspondence with others responding to the litigation, began working to coordinate how the system search for documents would be conducted, and she made it abundantly known that she hoped to make and support an argument that the sheer volume of responsive records meant the request itself was overly broad, even though they had waived that exemption months ago. Murrill, by the way, had been one of the chief architects and enforcers of the Jindal-era “deliberative process” exemptions.
Of course, the mere fact that a request produces a large number of records does not mean the request is overly broad, and the notion that Landry’s office attempted to quash documents, under the pretense of a confidentiality agreement and attorney-client privilege, could be considered probative of a pattern and practice of deliberate noncompliance and wanton disregard for the law.
A Postscript: Cocaine and the Gestapo.
For readers who have followed Jeff Landry’s political career, the headline- “Jeff Landry Has Something to Hide”- may seem like an obvious tongue-in-cheek reference to a part of his biography that he cannot escape. When he first ran for Congress, Landry claimed to have been a veteran of the Gulf War, until he was politely reminded that, in fact, he never left the United States or traveled to Iraq or Kuwait. It was an embarrassing and, to some, inexcusably disrespectful mistake, but it was overshadowed by an even wilder story.
When Landry was 23, he worked in the St. Martin Parish Sheriff’s Department as a deputy and shared a home in St. Martinville with a friend and fellow deputy, a man who, astonishingly managed to smuggle at least $10,000 worth of cocaine and stash it underneath their home. Once his colleagues caught onto the crime, the police executed a search warrant; Landry pleaded ignorance. His home was searched, and although it’s unlikely Landry even needed to consent to the warrant, he did so. His roommate lost his job and spent some time behind bars. Landry turned in his own badge three or four months later. Every now and then, the story resurfaces, usually by satirical publications like The Red Shtick.
On Sept. 2, 2010, seventeen full years after the incident, Landry promoted an exculpatory letter from an assistant district attorney in St. Martin Parish.
If the author’s name, Chester Cedars sounds familiar, scroll up to the very first email. Chester Cedars is now an assistant AG with the Louisiana Department of Justice..
There is one other thing worth mentioning: In the aftermath of the BP oil spill and the temporary permitting moratorium, then-Congressman Jeff Landry showed up without an appointment or any fair warning to the Bureau of Ocean Energy Management, Regulation and Enforcement (or BOEMRE), indignantly demanding an immediate meeting with the bureau’s chief.. Outrageously, he had to wait for twenty minutes. He was livid. According to The Times-Picayune, Landry could not believe how disrespectfully he was treated (emphasis added):
But in an interview after his questioning of Bromwich, the freshman Republican accused BOEMRE of acting “like the CIA and Gestapo” as he recounted how he was recently blocked from visiting the bureau’s New Orleans office.
Landry said he had to wait 20 minutes in the lobby for an agency official to come down and inform him that the top officials in the office weren’t in the office and that he would have to return another time. Landry said he wanted to learn about some stalled permits brought to his attention by a constituent.
He said he wasn’t given access to the employee overseeing the permits. Landry said he eventually received a copy of the agency’s staff telephone directory, but only after he threatened to file a Freedom of Information Act request.