Could Louisiana's Public Service Commission withhold letters exchanged with the Legislative Auditor during an audit?

Plain-English summary

The Louisiana Public Service Commission asked whether its correspondence with the Legislative Auditor during an audit was public before the final audit report came out. In Opinion 03-0063, the Attorney General drew a custody distinction. A records exemption for documents in the Legislative Auditor's custody did not generally exempt duplicate letters held by the Commission. The Commission ordinarily had to answer a records request for its own copies unless another exemption applied.

The AG made one exception in this setting: releasing the draft audit report and the Commission's responses before the final report issued would defeat the statutory timing rule for audit reports. He said those items should be withheld until three days after the report's issuance. The letter did not identify another exemption for the remaining correspondence.

Currency note

This opinion was issued in 2004. 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

Public records requesters

The opinion treated most Commission-held audit correspondence as subject to a request to the Commission, even when the Auditor had a copy. It separated draft reports and responses from ordinary correspondence for the period before the report became available.

State agencies under audit

The AG said the identity of the record custodian mattered. The statutory exemption for the Auditor's records did not automatically travel with copies held by the auditee, but the opinion preserved the draft report and responses until the stated post-issuance point.

Common questions

Q: Did the Auditor's records exemption cover letters held by the Commission? A: Generally no. The AG said that exemption attached to documents in the Auditor's custody or control, while the request here went to the Commission.

Q: Could a requester see the draft report before the final audit report issued? A: The AG said the Commission should withhold the draft report and its responses until three days after issuance of the final report under the provisions he analyzed.

Q: Did the opinion make every audit-related document public? A: No. It left room for other applicable exemptions and specifically excepted the draft report and responses for the stated period.

Background and statutory framework

The opinion quoted La. R.S. 44:1(2)(a) for the broad public-records definition and La. R.S. 44:4(6) for the exemption covering records in the Legislative Auditor's custody. It also quoted La. R.S. 24:513(F) on audit-report availability three days after issuance. Although numbered 03-0063, the official letter is dated January 28, 2004.

Citations and references

Authorities in the opinion: La. R.S. 44:1(2)(a); La. R.S. 44:4(6); La. R.S. 24:513(F).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0063

Original opinion text

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

DEPARTMENT OF JUSTICE
P.O. BOX 9400S
BATON ROUGE
70804-9005
CHARLES C. FOTI, JR.
ATTORNEY GENERAL

January 28, 2004
OPINION NUMBER 03-0063

90-C PUBLIC RECORDS
La. R.S. 24:511 et seq.; La. R.S. 24:513; La, R.S. 24:513(F).
La. R.S. 44 et seq.; La. R.S. 44:1(2)(a); La. R.S. 44:4(6); La. R.S. 44:6.

Eve Kahao Gonzalez
Correspondence between the Louisiana Public Service Commission and the
General Counsel
Legislative Auditor’s office made pursuant to and necessary to the
completion of a final Legislative Audit report specifically exempts only Louisiana Public Service Commission documents in custody and control of the Legislative Auditor from the public
P.O. Box 91154
records doctrine under the provisions of La. R.S. 24:513(F) and La. R.S.
44:4(6). However, the draft of the report and responses thereto should fall
Baton Rouge, LA 70821-9154
under exemptions until three days after report to issued. Other documents in
the custody and control of the Public Service Commission are subject to a public records request unless otherwise exempted under some other
Dear Ms. Gonzalez: provision.

You have requested this office to issue an advisory opinion as to whether correspondence between the Louisiana Public Service Commission and the Legislative Auditor (or his or her staff) relative to an audit being conducted on the Commission pursuant to La. R.S. 24:511, et seq. is public record prior to the release of the final audit report.

La. R.S. 44 et seq. is more commonly known as the public records doctrine. In general:

Information having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or the laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are "public records," except as otherwise provided in this Chapter or the Constitution of Louisiana. La. R.S.
44:1(2)(a).

However, there exist exceptions to the above doctrine. The public records doctrine further states that it does not apply:

To any records, writings, accounts, letters, letter books, photographs, or copies or memoranda thereof in the custody or control of the legislative auditor, or to the actual working papers of the internal auditor of a municipality until the audit is complete, unless otherwise provided. La. R.S. 44:4(6).

Page 2

OPINION NUMBER 03-0063
Eve Kahao Gonzalez
Page - 2-

The records at issue are written correspondence between the Louisiana Public Service Commission and the Legislative Auditor’s office. These letters address issues regarding the current legislative audit of the Commission which is still in progress. La. R.S. 24:513 specifically states:

The audit reports issued by the legislative auditor.., shall be subjected to the laws providing for inspection of public records and shall be available in the office of the legislative auditor three days after the date of issuance of the reports as provided by R.S. 44:6. However, this Subsection shall not apply to any documents, data, or information furnished the legislative auditor which are deemed confidential by law. La. R.S. 24:513(F).

The public records request in this case has been made to the Public Service Commission, not the Legislative Auditor. The records requested are in the custody or control of both the Public Service Commission and the Legislative Auditor. The exemption for the Legislative Auditor under La. R.S. 24:513(F) and La. R.S. 44.4(6) would not generally exempt the Public Service Commission from the requirements of the public records doctrine under Title 44.

However, since the "auditee" is given a draft of the Legislative Auditor’s report prior to its finalization and also given an opportunity to provide responses prior to its issuance, subjecting such information to a public records request would, in practice, defeat the clear language of the exemptions.

It is therefore the opinion of this office that the Public Service Commission should comply with the public records request in this case with the exception of providing a copy of the draft report and their responses thereto until three days after the issuance of the report. Should you have any further questions, please contact this office.

Very truly yours,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

By:
CHARLES H. BRAUD JR.
Assistant Attorney General

CCF, Jr./CHB;mjb