A Louisiana Law Department That Polices Itself
This story was originally published by ProPublica.
By Richard A. Webster, Verite
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Nearly half of Louisiana sheriffs are in violation of a state law regulating the preservation and destruction of public records, according to documents provided by state officials.
The disclosure follows an article this month by Verite, also published by ProPublica, on accusations that the Jefferson Parish Sheriff’s Office illegally destroyed documents in a lawsuit involving an autistic boy who died in custody. It also comes on the heels of increased scrutiny on the outsize power wielded by Louisiana sheriffs.
The new reporting found that the lack of a records retention policy extends far beyond Jefferson Parish. Of the 64 sheriffs statewide, 23 have never secured state approval for their policy, three allowed their policies to expire (one as far back as 1980) and the policies of an additional four are so limited they only address a small fraction of the records in their possession.
State law requires all public agencies to submit a records retention policy for approval to the State Archives, a division of the Secretary of State’s Office.
Further, in the past decade, nearly two-thirds of all Louisiana sheriffs failed to file a request with the state for permission to dispose of public records, as required by the same law. The State Archives, the agency responsible for overseeing and approving the handling of records, keeps disposal requests on file for 10 years.
The lack of governmental oversight of elected sheriffs — despite years of complaints and allegations of civil rights abuses — has made it difficult for alleged victims of police abuse to prove misconduct. It has also led to impunity for bad actors, according to civil rights attorneys, community activists and criminal justice experts.
And the lack of state approval for the disposal of public records means sheriffs offices are not fully accounting for information about alleged deputy misconduct, which can be crucial in investigations and litigation over claims of civil rights violations. These records can include internal affairs investigations into the use of excessive force and in-custody deaths, as well as more mundane documents such as payroll records.
Verite requested the records retention policies and disposal requests filed by every sheriff from the State Archives, the agency responsible for overseeing and approving the handling of records.
Some of the largest sheriff’s offices are among those that didn’t follow the public records law.
The Orleans Parish Sheriff’s Office under former Sheriff Marlin Gusman never sought approval for a records retention policy during his 17 years in office, according to the State Archives. In addition, Gusman did not obtain permission to destroy records for at least 10 years.
The parish jail overseen by the sheriff has been under a federal consent decree since 2013 following evidence of rampant violence — at the hands of both the guards and of those jailed — and unsafe living conditions. The consent decree is concerned with federal, not state, law and does not require the OPSO to get a state-approved records retention schedule.
As part of the federal consent judgment, Emily Washington and Elizabeth Cumming, attorneys with the MacArthur Justice Center in New Orleans, represent the men and women held in the Orleans Justice Center. They said they have been forced to request court assistance in accessing records related to in-custody deaths and uses of force by jail deputies. This highlights the need for records retention policies, Cumming said, not just for public accountability and transparency, but also for ensuring that jails are being operated in accordance with the Constitution.
“Comprehensive and accurate records are critical if patterns and causes of harm are going to be identified and corrected, for example when looking at staff deployment or employee discipline,” Cumming said. “Without a robust practice of record generation, maintenance, review and assessment, our clients will continue to experience preventable violations of their rights.”
Sheriff Susan Hutson, who defeated Gusman in the 2021 election, completed and signed a new records retention policy draft on Jan. 24, which will be submitted to the state for approval. Improving the agency’s handling of public records is a priority, she said.
“One of the things I told our communities is that this is going to be a well-run department, and that includes following the law,” Hutson said. “These are the community’s records. It’s their information. And we should be making sure it’s collected, preserved and available.”
The problems with the Jefferson Parish Sheriff’s Office came to light in a federal civil rights lawsuit filed by the family of a 16-year-old autistic boy who died in January of 2021 while being restrained by JPSO deputies. Attorneys for the family of Eric Parsa accused the sheriff of illegally destroying the disciplinary records of the accused deputies.
U.S. Magistrate Judge Donna Phillips Currault in a November ruling found that JPSO should have known to preserve the disciplinary and training records of deputies involved in the case. However, she denied the family’s request to place sanctions against the sheriff, stating that the family failed to prove JPSO destroyed evidence in “bad faith” or with a “desire to suppress the truth.”
According to its written policy, the sheriff’s office destroys its deputies’ disciplinary records after three years. Yet, as previously reported, it has not secured approval for that policy, nor has it submitted requests to dispose of public records in at least a decade, according to the State Archives.
This month, JPSO attorney Danny Martiny said the office doesn’t comment on pending litigation. Jefferson Parish Sheriff Joe Lopinto, who did not respond to requests for comment, denied all wrongdoing in court filings.
Attempts to reach Gusman were unsuccessful.
Record retention policies, or schedules, determine how long public records are preserved, and they provide guidelines on how they should be destroyed. Every public agency is required by law to submit one for approval with the State Archives.
State law instructs the secretary of state to notify the head of any agency of the “impending, or threatening unlawful removal, defacing, alteration, or destruction of records … and initiate action through the attorney general for the recovery of such records.”
Destroying, damaging, altering or removing public records “required to be preserved in any public office or by any person or public officer” is punishable by up to a year in prison, a fine of up to $1,000 or both.
State Archivist Catherine Newsome said aside from “ongoing outreach” to agencies throughout the state, there is little more State Archives can do since it is not a “law enforcement or compliance agency.”
Michael Ranatza, executive director of the Louisiana Sheriffs’ Association, in an email said that the group’s interpretation of the law allows sheriffs to retain public records for at least three years in the absence of a “more detailed records retention schedule.”
“We believe that Sheriffs utilizing the statutory alternative of a three year minimum retention period in the absence of a more formal retention policy are not acting unlawfully,” Ranatza said.
He did not address why 42 sheriffs do not have any disposal requests on file for at least 10 years.
Guidance from the secretary of state’s office says, “State agencies are required under La. R.S. 44:411 to submit a records retention schedule” to the State Archives for approval.
Asked if every agency is required by law to submit a records retention schedule to the secretary of state for approval, Newsome said, “Yes.”
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