Noncompliance with Sunshine Law

[Blade66609]

What is the name of your state (only U.S. law)? Louisiana

I was recently dismissed from a state university because of failing grades. I have a solid case that I have a disability and was not given accommodations according to the federal disabilities act. I have strong reason to suspect that my failing and lack of accommodations was discussed prior my failure of the course by a professor and a dean via university email. It seems to be a trend of these people to deny accommodations to disabled students, and I have another professor who claims that he has seen such emails. If I am correct, these emails should be subject to the Louisiana Open Records Act (Sunshine Law). Their lawyer has given me emails between these people, but there is a strange seven month gap that just happens to correspond with my presence at the university. It is interesting that these people email each other once a week, and then there is a SEVEN MONTH silence. I have requested that either the custodian or the lawyer provide a written, sworn statement verifying that these emails are full and accurate (which I can prove they are not) and they have refused to do so. In response I have filed a writ of mandamus to compel the court to look at these emails and independently verify that they are complete and accurate. In short, this lawyer has been using every tactic to thwart and stall me (which I suppose is their job).

Anyway, the main question I have is:

If these emails are part of the public record, can I then force them to verify the accuracy of their contents?

or

If they are not public record, can I make the case that I was given privileged information and have this lawyer disbarred for being unethical?What is the name of your state (only U.S. law)?

 

[justalayman]

Louisiana's sunshine law says that "all books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, 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 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 by the public records act or the Constitution of Louisiana." (Louisiana Revised Statutes 44:1).

"Information contained in electronic data processing equipment" is specifically included in the definition of "public records." This includes any records stored in digital form as well as all governmental e-mail records except for any records specifically exempted under the law

(Louisiana Public Records Act - Sunshine Review)

Not sure but I do not believe a university, even a state university, would fall under the law. It is not a public office and the records of the university are not public records, as I see it. As such, I cannot see the use of the law to subpoena any records as being a winning tactic.

If they are not public record, can I make the case that I was given privileged information and have this lawyer disbarred for being unethical?What is the name of your state

were they your records that were released to you? If not, you do not have standing to make a complaint. Those injured would need to make such a complaint but I suspect that the lawyers client(s) are quite aware of the disclosure and have no problem with it.


So, did you ever ask for accommodation due to your disability? How would lack of accommodation be cause for your failing grades?

 

[Blade66609]

Not sure but I do not believe a university, even a state university, would fall under the law. It is not a public office and the records of the university are not public records, as I see it. As such, I cannot see the use of the law to subpoena any records as being a winning tactic.

The law applies to any "branch, department, office, agency, board, commission, governing authority, or any committee, subcommittee, advisory board or task force of any branch, department, office, agency, board or commission, or any instrumentality of the state, parish, or municipal government, including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function." (RS 44:1)

By my reading of this, I cannot see how a public university would be exempt. The question is whether the EMAILS are.

were they your records that were released to you? If not, you do not have standing to make a complaint. Those injured would need to make such a complaint but I suspect that the lawyers client(s) are quite aware of the disclosure and have no problem with it.

Some of them were, some were not. I do see your argument that I do not have the standing to do scream and shout about this.

So, did you ever ask for accommodation due to your disability? How would lack of accommodation be cause for your failing grades?

Yes. On several occasions, and I have records of each request AND of two different responses. The first is: sure, we'll get you set up," the second is (direct quote) "You are not entitled to these accommodations until we say you are!"

I probably should have been more clear about this, but it is a learning disability which requires that I have longer time to take tests.

The point is, I can prove that they were negligent in not accommodating me, I want to prove malicious intent instead of "oopsy, our bad."

 

[justalayman]

Blade66609;2296039]The law applies to any "branch, department, office, agency, board, commission, governing authority, or any committee, subcommittee, advisory board or task force of any branch, department, office, agency, board or commission, or any instrumentality of the state, parish, or municipal government, including a public or quasi-public nonprofit corporation designated as an entity to perform a governmental or proprietary function." (RS 44:1)

By my reading of this, I cannot see how a public university would be exempt. The question is whether the EMAILS are.

Well, I disagree. I do not see anything that would apply to a university in the descriptions above. Since you believe otherwise, sue under the sunshine law and see how far you get but you better be able to defend your position or you will lose.

If the law applies, it, by the written word of the law, would cover e-mails.

Some of them were, some were not. I do see your argument that I do not have the standing to do scream and shout about this.

generally, there is no right to privacy considering emails anyway. You send them through servers and such that anybody actually has access to in some way. It is like sending a postcard. The writings are exposed to public view and therefore, you had willingly removed your rights to any claim of privacy.

Yes. On several occasions, and I have records of each request AND of two different responses. The first is: sure, we'll get you set up," the second is (direct quote) "You are not entitled to these accommodations until we say you are!"

So, when denied, did you file a complaint with the EEOC?

I probably should have been more clear about this, but it is a learning disability which requires that I have longer time to take tests

. Yes, that makes a difference. Depending on what the classes are, you may not have a right to extended time. Some tests are time dependent and altering that time removes the worth of the test. When making accomodations, they must be reasonable. Nobody is required to do anything and everything to accommodate a disability. That is what the EEOC does; determine if they had to provide an accommodation and if there even was a reasonable accommodation available without placing an unreasonable burden on them.

The point is, I can prove that they were negligent in not accommodating me, I want to prove malicious intent instead of "oopsy, our bad."

Did you provide them with medical support of your disability?

 

[Blade66609]

Well, I disagree. I do not see anything that would apply to a university in the descriptions above. Since you believe otherwise, sue under the sunshine law and see how far you get but you better be able to defend your position or you will lose.

If the law applies, it, by the written word of the law, would cover e-mails.

Well, either way they have not challenged thus far that they are an entity under this act, and they have presented at least some emails. So the question becomes: are the emails covered by the sunshine law and does the custodian have any duty to verify that they gave us everything; on the flip side, if they are presumed to be honest, how can the presumption be rebutted?

generally, there is no right to privacy considering emails anyway. You send them through servers and such that anybody actually has access to in some way. It is like sending a postcard. The writings are exposed to public view and therefore, you had willingly removed your rights to any claim of privacy.

Hmm, could you elaborate on this? Does this mean even if they don't fall under the Sunshine law, we can still get the emails?

So, when denied, did you file a complaint with the EEOC?

Yes, and I was told that because I was a student, and not an employer they couldn't help me. Also, I tried going to the ACLU and they didn't seem too keen on getting involved. I went to the OCR and they said that I had a certain amount of time to get the emails to back up my claim- 90 days- and it has since lapsed.

Yes, that makes a difference. Depending on what the classes are, you may not have a right to extended time. Some tests are time dependent and altering that time removes the worth of the test. When making accomodations, they must be reasonable. Nobody is required to do anything and everything to accommodate a disability. That is what the EEOC does; determine if they had to provide an accommodation and if there even was a reasonable accommodation available without placing an unreasonable burden on them.

I was not asking for anything unreasonable. Everything I was asking for I was previously and subsequently given these accommodations on similar courses.

Another twist. I came to the University in fall 07 got no accommodations. Spring 08 I got them at the same university. Before that, doing my M.Ed. at Framingham State college, I got it no problem.

Did you provide them with medical support of your disability?

Of course. Again, several times and I have records of all of those.

 

[justalayman]

=Blade66609;2296136]Well, either way they have not challenged thus far that they are an entity under this act, and they have presented at least some emails. So the question becomes: are the emails covered by the sunshine law and does the custodian have any duty to verify that they gave us everything; on the flip side, if they are presumed to be honest, how can the presumption be rebutted?

you would have to have some proof they are not being honest.

Hmm, could you elaborate on this? Does this mean even if they don't fall under the Sunshine law, we can still get the emails?

if not under the sunshine law, the only way they would be available would be by court order under discovery if there is a law suit or if some involved agency (OCR, EEOC, etc) would seek them for their investigation but that does not mean you could get them based on their need. They would have to seek them as I understand how they act.

Also, I tried going to the ACLU and they didn't seem too keen on getting involved

.Not their thing, I don't think. They are more involved with constitutionality of laws.

I went to the OCR and they said that I had a certain amount of time to get the emails to back up my claim- 90 days- and it has since lapsed

.everybody has their limitations. 90 days seems to be a quite short limitation but it is what it is.

The only other entity that I can find that may be germane to the situation would be these folks:

Section 504

Section 504 states that "no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that either receives Federal financial assistance or is conducted by any Executive agency or the United States Postal Service.

Each Federal agency has its own set of section 504 regulations that apply to its own programs. Agencies that provide Federal financial assistance also have section 504 regulations covering entities that receive Federal aid. Requirements common to these regulations include reasonable accommodation for employees with disabilities; program accessibility; effective communication with people who have hearing or vision disabilities; and accessible new construction and alterations. Each agency is responsible for enforcing its own regulations. Section 504 may also be enforced through private lawsuits. It is not necessary to file a complaint with a Federal agency or to receive a "right-to-sue" letter before going to court.

For information on how to file 504 complaints with the appropriate agency, contact:

U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Disability Rights Section - NYAV
Washington, D.C. 20530

ADA Home Page - ada.gov - Information and Technical Assistance on the Americans with Disabilities Act

(800) 514-0301 (voice)
(800) 514-0383 (TTY)

in my searching, I did see the entity and section of law applied to learning disabilities. Not sure it is applicable but surely worth making contact.

I was not asking for anything unreasonable. Everything I was asking for I was previously and subsequently given these accommodations on similar courses.

If they do not believe they are legally required to provide the accommodations, they can give and take as desired. If not legally required to provide accommodations, they can do what they want and in many universities, the individual professors have a supreme control over their individual classes. If not legally mandated, you may have simply found the profs that do no want to help you.

 

[Blade66609]

Ok, so quick question on the case.

Reading R.S. 37:216, (http://www.legis.state.la.us/lss/lss.asp?doc=93579) does the statute mean that if an attorney from another state who has no presence in Louisiana, no office, no clients, nothing, can not sign a motion in a Louisiana filing? Must that motion be striken even if the opposing party has already filed an answer to it and only seeks to disqualify it 315 days after it was filed and after answering it- 40 days or so before the hearing set for it?