After a Louisiana court ordered an arrest record expunged, did the sheriff have to destroy it, and could a victim's family obtain it?

Plain-English summary

The Ouachita Parish sheriff asked what to do with files after a court ordered expungement and whether the kind of offense changed the answer. In Opinion 03-0021, the Louisiana Attorney General said an expungement order did not automatically mean every record had to be destroyed. The court order, the offense, and the applicable part of LSA-R.S. 44:9 determined whether an agency had to destroy a record or retain a restricted portion.

Under the misdemeanor provision the AG discussed, an agency had to destroy arrest records when the court found the person entitled to expungement, keeping only an internal affidavit of destruction. The opinion identified an exception for specified driving while intoxicated arrests. For the felony provisions, the AG described records kept for later investigation or prosecution but closed to the public, with separate hearing requirements before some destruction or expungement orders.

The sheriff also described an expunged rape case in which the victim's mother wanted the investigative report for civil litigation. The AG said part of that felony record should have been retained for official investigative or prosecutorial purposes, but was not open to the public; he concluded the mother was not entitled to it under the law he applied.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at issuance

Sheriffs and records custodians

The AG said the governing statutory subsection and the court's order controlled disposal. He described mandatory destruction under the misdemeanor subsection for cases that qualified, but retention of limited expunged felony information for law-enforcement and prosecution purposes under other subsections. Retained material was not to be released to the public.

People whose records were expunged

The opinion distinguished removing records from public access from physically destroying every file. For the felony provisions he discussed, expungement could leave information available for later official investigation or prosecution.

Victims' families seeking investigative files

In the rape case presented, the AG said the victim's mother was not entitled to the retained report, even though she wanted it for civil litigation. His conclusion concerned that expunged felony record under the statutory scheme he described.

Common questions

Q: Did expungement always require a sheriff to destroy every record? A: No. The AG said the court order, the type of offense, and the applicable part of LSA-R.S. 44:9 determined what had to be destroyed or kept.

Q: What did the opinion say about qualifying misdemeanor arrest records? A: The AG said agencies had to destroy those records after the court found the person entitled to expungement, keeping only an internal affidavit of destruction. He identified a driving-while-intoxicated exception to that subsection.

Q: Could an expunged felony record still be used by law enforcement? A: The opinion described retaining certain information for later investigation or prosecution, while keeping it from the public.

Q: Could the victim's mother obtain the expunged rape investigation report for civil litigation? A: The AG said no in the case presented. He treated the retained material as available to the district attorney or law-enforcement agency, not to the public.

Background and statutory framework

The request asked about disposal of expunged case files and an expunged rape investigation. The opinion analyzed LSA-R.S. 44:9(A) for misdemeanor arrests, including its stated exception connected to LSA-R.S. 14:98; LSA-R.S. 44:9(B) and (C) for felony records and specified offenses; and LSA-R.S. 44:9(E) for destruction and sex-offense hearing requirements. It relied on La. Atty. Gen. Op. No. 96-294. The official PDF extract identifies opinion 03-0021 but gives no legible issue date, so the date field is blank.

Citations and references

Authorities in the opinion: LSA-R.S. 44:9(A), (B), (C), and (E); LSA-R.S. 14:98; La. Atty. Gen. Op. No. 96-294.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0021

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

P.O. BOX 94095
DEPARTMENT OF JUSTICE
BATON ROUGE, LA 70804-9095
RICHARD P. IEYOUB CRIMINAL DIVISION Telephone:
ATTORNEY GENERAL
(225) 342-7552
FAX:
(225) 342-7893
OPINION 03-0021

Richard L. Fewell, Sr.
16-A CRIMINAL LAW PROCEDURE
Sheriff, Ouachita Parish 90-C PUBLIC RECORDS
P.O. Box 1803
We conclude that the type of crime, whether misdemeanor or felony,
should govern the complete destruction or the partia~ destruction of
Monroe, LA 71210-1803
criminal records when a court has determined a mover is entitled to
expungement.

Dear Sheriff Fewell:

This office is in receipt of your opinion request of recent date wherein you ask both, "What the proper method is for the disposal or non-disposal of information and case files regarding persons whose records have been expunged, and should the type of disposition effect the expungement?"

La. Atty. Gen. Op. No. 96-294 governs our response. Therein, note that when a record is ordered by the court to be expunged, destruction of the record does not follow automatically. The court’s order, what crime is being expunged, and the provisions of Records of Violations, LSA-R.S. 44:9 govern the rules for destruction of the record.

LSA-R.S. 44:9(A) deals with the records of persons arrested for violations, which are classified as a misdemeanor. When a court under this section determines the mover is entitled to have his record expunged, any office or agency having any record of the arrest in any form must destroy these records, not just expunge them. These agencies or offices are only to keep an affidavit attesting that these records have been destroyed, and this affidavit is to be used only for the agency’s internal office filing. Therefore the affidavit is not a public document.
This article does not apply to arrests for first or second violations of any driving while intoxicated statute or ordinance related to LSA-R.S. 14:98.

LSA-R.S. 44:9(B) &(C) both deal with the records of persons arrested for violations, which are classified as a felony. Part (B) also applies to violations of LSA-R.S. 14:34.2, 14:34.3, and 14:37. If the court determines, after contradictory hearing, that expungement should be forthcoming, the record must be expunged but there is no mention of destruction of the record as part (A) provides:

The expungement should not limit or impede authority under law to consider prior arrests or convictions in future prosecution under multiple offender provisions or impede the investigation of any law enforcement officer seeking to ascertain or confirm. The agency

Richard L. Fewell, Sr.
OPINION 03-0021
Page 2

should keep the record or part of the record, which satisfies these explicit purposes, but these records should not be made available to the public.

Part (C), which is applicable to felonies, states that if the court determines that the mover is entitled to have his record expunged, the office or agency shall expunge the records, but the office or agency may preserve the name and address of the person and the facts for investigative purposes. Although these parts of the record are retained for possible later investigations or prosecutions, they are not open to the public.

LSA-R.S. 44:9(E) provides for the destruction of records of arrest and prosecution. Section (1) states that the court may order the felony records destroyed and expunged but only after a contradictory hearing attended by the district attorney and the law enforcement agency. Section (2) applies to sex offenses and states that no court shall order the expungement or destruction of any record of arrest and prosecution in such cases except after contradictory hearing.

We conclude that the type of crime, whether misdemeanor or felony, should govern the complete destruction or the partial destruction of criminal records when a court has determined a mover is entitled to expungement.

Specifically you referred to a rape case that was expunged and the mother of the victim wanted the investigative report for civil litigation. Any type of rape is considered a felony and according to LSA-R.S. 44:9 a partial record should have been retained for future investigative or prosecutorial purposes. The record, however, is only available to the District Attorney or the law enforcement agency and not open to the public. Therefore, the mother of the victim is not entitled to it.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BY:
I~AI~TY 141TE
ASSISTA~0NT ATTORNEY GENERAL

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