Could Louisiana's dental board expunge a first-time advertising discipline record after three years despite public-records law?

Plain-English summary

Louisiana's dentistry board asked whether Act 189, enacted from House Bill 72, conflicted with the Public Records Act by allowing expungement of final disciplinary records for first-time advertising offenders. In 2005, the Attorney General concluded that the two laws could coexist. The disciplinary decision was a public record while it existed, but Act 189 addressed its later disposal after a period of public availability; it did not make the record confidential during that period.

The AG distinguished a record-access exemption from a retention rule. It said the Public Records Act's exemption for certain reports on a dentist's fitness did not cover final board determinations or their legal grounds. The opinion then read the public-record retention provision as permitting disposal after at least three years in the circumstances it described, unless a different retention requirement or permanent-record rule applied. It said Act 189 required the three-year period and two other conditions for expungement, without identifying those conditions in this opinion. That leaves the exact Act 189 eligibility details unresolved on this page.

Currency note

This opinion was issued in 2005. 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.

Common questions

Were final dental-board discipline decisions public records before expungement?

The AG said yes. It found that final adjudications and their legal grounds were not within the cited fitness-report exemption and were public while retained.

Did Act 189 make first-time advertising discipline records secret?

No. The AG said it set out later disposal of records that had already been available to the public, rather than creating a new Public Records Act exception.

Was three years by itself enough to expunge a record?

The opinion said Act 189 also imposed two additional requirements, which it did not set out. It therefore did not say that passage of three years alone was sufficient.

Did the AG find Act 189 invalid under public-records law?

No. It concluded that Act 189 was viable alongside the Public Records Act because it governed disposal after public availability, subject to the retention framework the opinion discussed.

Background and statutory framework

The board's president asked about House Bill 72, later Act 189, and final adjudications of first-time dental advertising violations. The AG cited R.S. 44:1(A)(2)(a) for the records' public character, examined the Act's exemption provisions, and quoted LA-RS 44:36 on minimum retention and approved schedules. It relied on Trahan v. Larivee for liberal interpretation of public access. Its central distinction was that Act 189 supplied a disposition rule for records that had been public, not an exemption from access while they remained in custody.

Citations

• R.S. 44:1(A)(2)(a) (public-record definition cited by the AG).
• R.S. 44:4.1 (rule governing exceptions to public access).
• LA-RS 44:36 (retention provision quoted in the opinion).
• Trahan v. Larivee, 365 So.2d 294, 298 (La. App. 3d Cir. 1978) (public-access interpretation cited by the AG).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0339

Original opinion text

December 6, 2005
OPINION NUMBER 05-0339

19-B Dentistry
90-C Public Records

R.S. 44:1; R.S. 44:4; R.S. 44:36
Dr. Vance Wascom
Louisiana State Board of Dentistry Act 189 is viable in light of the Public Records Act
One Canal Place
because it does not attempt to create an exception to
365 Canal Street, Suite 2680
it but seeks to dispose of records that are available to
New Orleans, LA 70130
the public after a period of three years.

Dear Dr. Wascom:

In your letter of August 22, 2005, you requested an opinion of the Attorney General’s Office concerning the conflict between House Bill 72 of the 2005 legislative session and the Public Records Act. Specifically you asked whether the record of disciplinary proceedings of the final adjudications of first-time advertising offenders may be expunged according to HB 72, hereinafter, Act 189, in light of the pre-existing provisions of the Public Records Act (LA-R.S. 44:1, 44:4, 44:36).

The records of disciplinary proceedings are the result of the performance of a duty of a public entity, the Louisiana State Board of Dentistry (LSBD). Consequently, according to the definition provided in R.S. 44:1(A)(2)(a), the records of these proceedings are public record, unless exempted by the Public Records Act (PRA) or otherwise specifically exempted by law.

There is an inherently strong public policy to interpret the PRA liberally because its purpose is to extend, rather than restrict access to public records. Trahan v. Larivee, 365 So.2d 294, 298 (La. App. 3d Cir. 1978). Accordingly, to uphold this public policy, it is implicit that any derogation from the PRA that is not excepted in the act itself, must be specifically excepted by another statute.

Although 44:4(11) may provide a specific exception by exempting records relating to reports concerning the fitness of any person to receive or continue to hold a license to practice as a dentist, the scope of the exception does not extend to this issue. This is because the scope of the exception does not apply

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Opinion No. 05-0339
Dr. Vance Wascom
President, Louisiana State Board of Dentistry
Page: - 2 –

to “…any final determination made by the board, and any legal grounds upon which such action is based…” The records of these final determinations are to be made public record. Specifically, the records of disciplinary proceedings fall within the scope of this provision because it is a final determination, thereby making it non-exempt from the PRA, under this section.

Furthermore, the legislature has delineated exclusive exceptions to the Public Records Act in 44:4.1 by stating in pertinent part: “….Any exception, exemption, and limitation to the laws pertaining to public records not provided for in this Chapter or in the Constitution of Louisiana shall have no effect.” This section specifically addresses records, similar to the aforementioned provision concerning fitness reports, which are not required to be made available to the public.

It is the opinion of this office that these sections of the PRA are not applicable in this case because Act 189 does not attempt to prohibit public access to records of disciplinary proceedings, but rather seeks to provide a rule for the disposal of records that already exist as public record, after a certain period of time. Therefore, Act 189 does not make an exception to the PRA, but rather provides for disposing of the records of disciplinary proceedings of a first-time advertising offender that have previously been available to the public after a period of three years.

LA-RS 44:36 states in pertinent part that:

All persons and public bodies having custody or control of any public record, other than conveyance, probate, mortgage, or other permanent records required by existing law to be kept for all time, shall exercise diligence and care in preserving the public record for the period or periods of time specified for such public records in formal records retention schedules developed and approved by the state archivist and director of the division of archives, records management, and history of the Department of State. However, in all instances in which a formal retention schedule has not been executed, such public records shall be preserved and maintained for a period of at least three years from the date on which the public record was made.

Implicitly, the above provision provides that in the absence of an agreement otherwise and unless the record is required by existing law to be kept permanently, after a period of three years, expungement is allowed. Act 189 falls within the scope of this provision of the PRA because it calls for expungement of

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Opinion No. 05-0339
Dr. Vance Wascom
President, Louisiana State Board of Dentistry
Page: - 3 –

records after a period of three years, provided two other requirements are also met. Therefore, Act 189 is viable in light of the PRA.

We hope that this opinion has adequately addressed your question. If you need any further information, please do not hesitate to contact this office.

Yours very truly,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

By: _______
CHARLES H. BRAUD, JR.
Assistant Attorney General

CCF, Jr./CHB/pb

Page 4

SYLLABUS
OPINION NUMBER 05-0339

19-B Dentistry
90-C Public Records

R.S. 44:1; 44.4; 44:36

Act 189 is viable in light of the Public Records Act because it does not attempt to create an exception to it but seeks to dispose of records that are available to the public after a period of three years.

Dr. Vance Wascom
Louisiana State Board of Dentistry, President
One Canal Place
365 Canal Street, Suite 2680
New Orleans, LA 70130

DATE RECEIVED:

DATE RELEASED: December 6, 2005

Charles H. Braud, Jr.
Assistant Attorney General