author: WELCH, J.

text:
    Thomas D. GILMORE, Jr. v. Carol WHITED and Grace Episcopal Church.
    No. 2008 CA 1808.
    Court of Appeal of Louisiana, First Circuit.
    March 31, 2009.

      Keith D. Crawford, Gonzales, LA, for Plaintiff-Appellant, Thomas D. Gilmore, Jr.
    Donna Wright Lee, Baton Rouge, LA, for Defendant-Appellee, Grace Episcopal Church.
    Timothy Fondren, Hammond, LA, for Defendant-Appellee, Carol Whited.
    Before PARRO, McCLENDON, and WELCH, JJ.
   WELCH, J.

|2Thomas D. Gilmore, Jr., the father of Allison Lee Gilmore, who is deceased, appeals a judgment sustaining the peremptory exceptions raising the objection of prescription filed by both defendants, Carol Whited and Grace Episcopal Church (“Grace”), and dismissing Mr. Gilmore’s action to exhume and relocate the remains of Allison. For the following reasons, we reverse in part and affirm in part the judgment of the trial court and remand for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

On November 26, 2007, Mr. Gilmore filed a petition seeking to exhume Allison’s remains, which were interred in Grace’s cemetery, and to have her remains transferred to another burial space in the same cemetery. Grace, as the cemetery authority, and Ms. Whited, Allison’s mother, were named as defendants in the action. In his petition, Mr. Gilmore alleged that in April or May of 2005, Allison passed away, but because he was estranged from his daughter and divorced from Ms. Whited, he did not learn of Allison’s death until the following year. Mr. Gilmore further alleged that when he learned of Allison’s death, he also learned that she was buried, without his consent or permission, in Grace’s cemetery in a burial plot that was owned by him and was adjacent to the burial plot of his father, Thomas D. Gilmore, Sr. Mr. Gilmore further alleged that since it was his desire that he be buried next to his father and since his burial space was taken from him without his consent, he had offered to purchase another burial plot in Grace’s cemetery and to have Allison’s remains transferred to that space. However, both Ms. Whited and Grace refused; therefore, he commenced these proceedings in accordance with La. R.S. 8:659(A)(3), seeking a judgment ordering the defendants to remove Allison’s remains from her current burial space, to transfer her remains to another space in Grace’s cemetery, and to restore his property rights in his burial |3space. Additionally, Mr. Gilmore alleged that he had suffered mental anguish over this situation and, therefore, requested judgment for “all just and reasonable damages under the circumstances,” plus legal interest from the date of judicial demand and attorney fees.

In response to this petition, Ms. Whited filed a peremptory exception raising the objections of prescription and no cause of action, and Grace filed a peremptory exception raising the objections of prescription, no cause of action, and no right of action. After a hearing on January 9, 2008, the trial court rendered judgment sustaining the peremptory exceptions raising the objection of prescription filed by Ms. Whited and Grace pursuant to La. R.S. 8:658; noticing, on its own motion, the objection of non-joinder of a party under La. C.C.P. art. 641; finding that both the peremptory exceptions raising the objection of no cause of action filed by Ms. Whited and Grace and the peremptory exception raising the objection of no right of action filed by Grace were moot because of its ruling on prescription and non-join-der of a party; and dismissing Mr. Gilmore’s petition at his cost. A written judgment in conformity with the trial court’s ruling was signed on April 26, 2008. From this judgment, Mr. Gilmore has appealed.

II.ASSIGNMENT OF ERRORS

On appeal, Mr. Gilmore raises four assignments of error that present seven issues for this court’s review. These can be summarized as: (1) whether the trial court erred in interpreting La. R.S. 8:658 as a prescriptive statute and in applying it to this case; (2) whether the trial court erred in sustaining the peremptory exceptions raising the objection of prescription filed by Ms. Whited and Grace; and (3) in light of the trial court’s erroneous interpretation of La. R.S. 8:658, whether the trial court erred in noticing, on its own motion, the objection of non-joinder of |4a party under La. C.C.P. art. 641.

III.STANDARD OF REVIEW

Generally, the trial court’s factual findings on a peremptory exception raising the objection of prescription, such as the date on which prescription begins to run, are reviewed on appeal under the manifest error-clearly wrong standard of review. See Webb v. Blue Cross Blue Shield of Louisiana, 97-0681, p. 6 (La.App. 1st Cir.4/8/98), 711 So.2d 788, 792. However, in this case, the issue of whether Mr. Gilmore’s action under La. R.S. 8:659 was prescribed involves the proper application and interpretation of La. R.S. 8:658. The proper application and interpretation of a statute is a question of law. See Pittman v. Magic City Memorial Company, 2007-1567, p. 4 (La.App. 1st Cir.3/26/08), 985 So.2d 156, 158, and Cleco Evangeline, LLC v. Louisiana Tax Comm’n, 2001-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353. Therefore, on review, this court must initially determine whether the trial court was legally correct or legally incorrect in its interpretation of the statute and in its application of that statute to this case. See Pittman, 2007-1567 at p. 4, 985 So.2d at 158, and Cleco Evangeline, LLC, 2001-2162 at p. 3, 813 So.2d at 353.

IV.LAW AND DISCUSSION

A. Prescription

Since Mr. Gilmore’s petition sought both an order to move Allison’s remains pursuant to La. R.S. 8:659 and damages, we will address the issue of prescription in relation to both of those actions separately.

1. Louisiana Revised Statutes 8:659

Once the human remains of a deceased person have been buried in a cemetery, those remains may not be removed unless the requirements of La. R.S. |s8:659 have been met. Louisiana Revised Statutes 8:659 provides:

A. The remains of a deceased person may be moved from a cemetery space to another cemetery space in the same cemetery or to another cemetery with the consent of the cemetery authority and the written consent of one of the following, in the order named, unless other directions in writing have been given by the decedent:
(1) The surviving spouse, if no petition for divorce has been filed by either spouse prior to the death of the decedent spouse.
(2) The surviving adult children of the decedent, not including grandchildren or other more remote descendants.
(3) The surviving parents of the decedent.
(4) The surviving adult brothers and sisters of the decedent.
B. If the required consent cannot be obtained, a final judgment of the district court of the parish where the cemetery is situated shall be required.

Under this statute, before Allison’s remains could be disinterred and transferred, the necessary consent of Ms. Whited, as a surviving parent, and Grace, as the cemetery authority, had to be obtained. Therefore, when Ms. Whited and Grace refused to voluntarily give their consent to exhumation and removal of Allison’s remains, the sole authority to order the disinterment and transfer of her remains became vested by law in the trial court.

2. Louisiana Revised Statutes 8:658

However, both Ms. Whited and Grace asserted, and the trial court agreed, that Mr. Gilmore’s action to disinter Allison’s remains under La. R.S. 8:659 was prescribed pursuant to the provisions set forth in La. R.S. 8:658. However, Mr. Gilmore asserted that by its own terms and title, La. R.S. 8:658 is not a prescrip-five statute, and the trial court erred in interpreting it as such.

The appropriate starting point for statutory interpretation is the language of the statute itself. State Civil Service Commission v. Department of Public Safety Director, 2003-1702, p. 5 (La.4/14/04), 873 So.2d 636, 640. Louisiana Revised Statutes 8:658 was enacted by 1974 La. Acts, No. 417, § 1, and currently provides that “[n]o action shall lie against any cemetery authority relating to the remains of any person which have been left in its possession for a period of sixty days, unless a written contract has been entered into with the cemetery authority for the care of such remains.”

Under the general rules of statutory construction, courts begin their review with the premise that legislation is the solemn expression of the legislative will, and therefore, the interpretation of law primarily involves the search for the legislative intent. State Civil Service Commission, 2003-1702 at p. 5, 873 So.2d at 640. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. When the words of a law are ambiguous, them meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12.

First and foremost, we note that by its terms, La. R.S. 8:658 is directed solely to actions “against any cemetery authority.” In this case, there is no dispute that Ms. Whited is not a cemetery authority, and thus, this statute is not applicable to Mr. Gilmore’s claim against Ms. Whited. Therefore, we find that the trial court legally erred in determining that Mr. Gilmore’s action under La. R.S. 8:659 against Ms. Whited was prescribed pursuant to La. R.S. 8:658.

With regard to Grace, the cemetery authority, after examining the language of La. R.S. 8:658 in its entirety, we find that it is ambiguous. For instance, the sixty-day time period set forth therein could be interpreted as a time period that |7must pass before an action against a cemetery authority in possession of remains can be brought, ie. “No action shall lie against any cemetery authority relating to the remains ... for a period of sixty days.” But it can also be interpreted as a time period for which possession of remains by a cemetery authority will serve to bar an action against it relating to those remains, ie., “No action shall he against any cemetery authority relating to the remains ... left in its possession for a period of sixty days.”

Because we have determined that La. R.S. 8:658 is vague, the meaning of its words must be sought by examining the context in which they occur and the text of the law as a whole. Although we recognize that the title of a statute is not the law, we can look to the title of a statute to get a general understanding of the meaning of a statute’s words or to decide the context in which a word in the statute is used. Dufrene v. Video Co-Op and Louisiana Workers’ Compensation Corporation, 2002-1147, p. 11 (La.4/9/03), 843 So.2d 1066, 1073; Louisiana Associated General Contractors, Inc. v. Calcasieu Parish School Board, 586 So.2d 1354 (La. 1991). The title of La. R.S. 8:658 is “Liability for damages; limitation.” Neither the title of La. R.S. 8:658 or the language of the statute itself speaks of prescription or a time period within which a party must file a claim against a cemetery authority. Rather, judging from its title, the purpose of this statute appears to protect or limit a cemetery authority’s liability for damages relating to the remains of a person.

Furthermore, in 2003, the legislature changed the time period set forth in La. R.S. 8:658 from one year to sixty days. See 2003 La. Acts, No. 1243, § 1. The Digest prepared by the House Legislative Services contained a summary of the amendment to La. R.S. 8:658 by Act 1243. It stated, in pertinent part, as follows:

Prior law provided that no action shall lie against any cemetery authority relating to remains which have been left in its possession for a period of one year, unless a written contract has been entered into | sfor the care of such remains. New law changes the prior law by reducing the time period in which the cemetery may possess the remains before taking action from one year to 60 days. (Italicized emphasis added).

Although the Digest is not part of the actual legislative instrument, the use of the phrase “before taking action” in the summary suggests that the legislature’s intent was that the stated time period was a time period that a cemetery authority could possess remains prior to any action against it relating to the remains, unless there was a written contract for the care of the remains. If the legislature intended for the cemetery authority to be able to possess the remains for a requisite time period before action could be taken against it, then it would be illogical for the legislature to also intend that such action be brought within that same time period.

Accordingly, while we have determined that La. R.S. 8:658 is ambiguous, when the context of the statute, its legislative summary related to the 2003 amendment, and its title are considered, we do not find that the sixty-day time period could be interpreted, as the trial court did, as a prescriptive period or a time period within which any action against a cemetery authority relating to the remains of a person must be brought. To do so would require us to read into the statute language that was not included or intended by our legislature. As such, we find that La. R.S. 8:658 was intended to govern the time period during which the remains of a person could be left in the possession of a cemetery authority before an action could be brought against the cemetery authority regarding those remains; it is not a prescriptive period for an action seeking relief under La. R.S. 8:659. Accordingly, the trial court erred in determining that Mr. Gilmore’s action pursuant to La. R.S. 8:659 against Grace was prescribed pursuant to La. R.S. 1^8:658.

3. Damages

In Mr. Gilmore’s petition, he also alleged that as a result of the actions of Ms. Whited and Grace in burying Allison without his consent in the cemetery plot owned by him and adjacent to his father, he had suffered mental anguish for which he was entitled to damages, attorney fees, and legal interest. In the peremptory exceptions ;raising the objection of prescription filed by Ms. Whited and Grace, they argued that, to the extent that Mr. Gilmore’s petition alleged tortious conduct by them would that entitle Mr. Gilmore to damages, such claims were prescribed pursuant to La. C.C. art. 3492.

Ordinarily, the party urging an exception raising the objection of prescription has the burden of proving facts sufficient to support the exception. Cichirillo v. Avondale Industries, Inc., 2004-2894, 2004-2918, p. 5 (La.11/29/05), 917 So.2d 424, 428. However, if the action is prescribed on the face of the petition, the burden shifts to the plaintiff to show that the action has not prescribed. Id.; see also In Re Medical Review Panel for Claim of Moses, 2000-2643, p. 6 (La.5/25/01), 788 So.2d 1173, 1177.

In this case, the prescriptive period applicable to any claim for alleged tort damages, for which Ms. Whited and Grace would be liable, is a liberative prescription of one year for delictual actions set forth in La. C.C. art. 3492. According to the allegations in Mr. Gilmore’s petition, Allison died and was buried in Grace’s cemetery in April or May of 2005. He also alleged that one year' following her death and burial (or in April or May of 2006), he discovered that she had died and that she was buried, without his consent, in the cemetery plot owned | Tnby him and adjacent to his father. Thus, Mr. Gilmore’s action for damages, filed on November 26, 2007, more than one year from the date he discovered her death and burial, was prescribed on its face. Accordingly, on the trial of the exception, Mr. Gilmore had the burden of proving that, with regard to his action for damages, prescription was either interrupted or suspended. The record before us is devoid of any such evidence. Accordingly, we find that, to the extent that Mr. Gilmore’s petition also alleged a cause of action for tort damages due to the conduct of either Ms. Whited or Grace, the trial court correctly sustained the peremptory exception raising the objection of prescription, and we hereby affirm that part of the judgment of the trial court.

B. Non-Joinder

After sustaining the peremptory exceptions raising the objection of prescription pursuant to La. R.S. 8:658, the trial court determined:

Since the action against Grace has been prescribed and that action is dismissed, Grace cannot be maintained as a party. Complete relief cannot be accorded to a party under the provisions of [La. C.C.P. art.] 641. Grace can’t be joined and the peremptory exception [raising the objection] of non-joinder as to Ms. Whited is sustained. And I will note for the record that the Court may notice that particular exception, which I do.

Thus, it appears that the trial court’s reason for noticing the objection of nonjoinder of a party under La. C.C.P. art. 641 on its own motion was the dismissal of Grace from the proceedings based on prescription. However, because we have determined that, as to Mr. Gilmore’s suit pursuant to La. R.S. 8:659, the trial court erred in sustaining the objection of prescription pursuant to La. R.S. 8:658, it follows that the trial court also erred in noticing the objection of non-joinder of a party under La. C.C.P. art. 641 on its own motion.

V. CONCLUSION

For all of the above and foregoing reasons, we reverse that portion of the April 25, 2008 judgment, insofar as it sustains the peremptory exception raising the _J_nobjection of prescription filed by Ms. Whited and Grace, dismisses Mr. Gilmore’s claims under La. R.S. 8:659, and notices the peremptory exception raising the objection of non-joinder of a party pursuant to La. C.C.P. art. 641 on its own motion. However, we affirm that portion of the April 25, 2008 judgment, insofar as it sustains the peremptory exception raising the objection of prescription filed by Ms. Whited and Grace and dismisses Mr. Gilmore’s .tort claims against Ms. Whited and Grace. This matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.

All costs of this appeal are hereby assessed equally to the plaintiff/appellant, Thomas D. Gilmore, Jr., and the defendants/appellees, Carol Whited and Grace Episcopal Church.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

McCLENDON, J., Concurs.

      . See La. R.S. 8:1(9).

      . We note that several of Mr. Gilmore’s issues presented for review were neither submitted to the trial court nor addressed by its judgment. Therefore, those issues numbered 5 and 6 are not properly before this court. See Uniform Rules — Courts of Appeal Rule 1-3. We further note that these issues formed no part of the trial court’s decision.

      . It is undisputed that the trial court in this case is the "district court of the parish where the cemetery is situated” under La. R.S. 8:659(B).

      . When originally enacted. La. R.S. 8:658 provided that no action shall lie against any cemetery authority relating to remains which have been left in its possession for a period of one year, unless a written contract has been entered into for the care of such remains. 2003 La. Acts, No. 1243, § 1 changed the time period from one year to sixty days.

      . We note that in Taggert v. Our Lady Queen of Heaven Catholic Church, 2004-1331 (La.App. 3rd Cir.2/2/05), 893 So.2d 1001, writ denied, 2005-0569 (La.4/29/05), 901 So.2d 1072, and Savell v. Affiliated Enterprises, Inc., 26, 359 (La.App. 2nd Cir. 12/7/94), 647 So.2d 465, our brethren in the Third and Second Circuits held that La. R.S. 8:658 is clear and unambiguous and prescriptive in nature. We respectfully disagree with the analysis by the Third and Second Circuits in those cases.

      . Louisiana Civil Code article 3492 provides: "Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.”


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Marvin D. ERVIN.
    No. 2008-KA-1078.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 1, 2009.

      Robert L. Freeman, Jr., District Attorney, Kevin Guillory, Assistant District Attorney, New Orleans, LA, for Appellant.
    Joshua Perry, Orleans Public Defenders New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, Sr., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| lAppellant, the State of Louisiana, appeals the trial court’s grant of Defendant-Appellee’s motion to quash the bill of information. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On August 19, 2005, the State charged defendant by Bill of Information with possession with one count of intent to distribute cocaine, a violation of La. R.S. 40:967(B). On Thursday, August 24, 2005, defendant appeared for arraignment and pled not guilty. On the following Monday, Hurricane Katrina struck. Defendant was evacuated to Hunt Correctional Center in St. Gabriel, Louisiana, from Orleans Parish Prison as a consequence of Hurricane Katrina. On December 21, 2005, Defendant was re-arraigned while at Hunt Correctional Center.

On January 12, 2006, Defendant appeared for a status conference. On January 24, 2006, a hearing on defense motions was held, and the trial court denied the motion to suppress the evidence and found probable cause. The trial court conducted a status conference on February 3, 2006, in the defendant’s absence and set the matter for trial on March 13, 2006. However, on that date, the defendant was not transported to court, and the trial was continued until April 3, 2006. On |2that date, the defendant appeared attended by counsel, and the trial court conducted a pre-trial conference.

On May 26, 2006, defense counsel appeared for a pre-trial conference; however, the defendant was not transported to court. The trial court reset the matter until July 31, 2006. The minute entry from that date indicates that defendant did not appear, and the trial court issued an alias capias and set a bond forfeiture hearing for August 18, 2006. On August 18, 2006, it was determined that defendant was actually in custody at the South Louisiana Correctional Center in Basile, Louisiana, as evidenced by the State’s filing of a motion and order for writ of habeas corpus ad prosequendum, directing officials at the center to transport the defendant for trial on September 15, 2006. The minute entry from September 15, 2006 reflects that the defendant was in custody but was not transported to court for trial; the matter was re-set for September 26, 2006. On September 26, 2006, the minute entry reflects that defendant remained in the sheriffs custody and was not brought to court; the matter was re-set for October 10, 2006. Likewise, on October 10, 2006, the defendant was not transported to court for the scheduled pre-trial conference. The conference was re-set for November 7, 2006.

The November 7, 2006, minute entry reflects that the defendant did not appear for a pre-trial conference and that one Damien Sutton accepted service for the defendant for the pre-trial conference scheduled for November 13, 2006. The November 13, 2006, minute entry reflects that defendant failed to appear, and the trial court issued an alias capias. However, the defendant was in custody during this time.

|sThe matter next appeared on the docket on July 31, 2007 for a pre-trial conference, where the minute entry reflects he appeared with counsel. On August 2, 2007, the defendant again appeared for a pre-trial conference. On August 6, 2007, another pre-trial conference was held. At that time, the defendant filed a speedy trial motion. Defendant also filed a motion to be released from custody, which the trial court denied. Trial was set for August 16, 2007. On that date, defendant was not transported to court, and counsel for the defense requested a continuance. The trial court granted the request for a continuance, and indicated that defendant would again be placed on the jail list. A pre-trial conference scheduled for August 23, 2007, was continued after the defendant was not transported to court.

On August 28, 2007, the defendant appeared for a pre-trial conference. On that date, defendant filed a motion to quash, asserting that his constitutional right to a speedy trial had been violated. On September 10, 2007, the trial court granted defendant’s motion to quash, which the State now appeals.

ASSIGNMENT OF ERROR NUMBER 1

In the sole assignment of error, the State submits that the trial court erred in granting defendant’s motion to quash because the defendant’s right to a speedy trial was not violated.

The right to a speedy trial is set forth in both the federal and state constitutions. U.S. Const. Amend. 6; La. Const. Art. I, § 16 (see also La.C.Cr.Pr. art. 701(A)). In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101, (1972), the U.S. Supreme Court adopted a balancing test in which the conduct of the State and |4the defendant are weighed for purposes of determining whether the right to a speedy trial has been violated. Specifically, the Court articulated four separate inquiries: whether the delay between accusation and trial is uncommonly long; whether the prosecution or the defendant is more to blame for the delay; whether, in due course, the defendant asserted his right to a speedy trial; and whether he suffered prejudice as a result of the delay. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2191. Of the four factors, the second has been characterized as the most pivotal. United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640.

The Court also recognized that the first inquiry, the length of the delay, is to some extent a threshold requirement, noting that until there has been some delay which has been “presumptively prejudicial,” there is nothing to trigger a speedy trial analysis, and no necessity for further inquiry. Barker, supra, at 531, 92 S.Ct. at 2192. Furthermore, the length of delay must be judged relative to the peculiar circumstances of the case such as the complexity and seriousness of the crime. Id.

In Doggett v. U.S., 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), the Court noted that “depending on the nature of the charges, the lower courts have generally found post-accusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Id. at 652, 112 S.Ct. at 2691, n. 1 (citations omitted). In this case, from the date the Bill of Information was filed until the motion to quash was granted, approximately twenty-five months elapsed, arguably constituting a presumptively prejudicial delay. Therefore, an evaluation of the remaining Barker factors is warranted.

|sTurning to the second factor, it is evident from the record that a substantial delay in Defendant’s proceedings was caused by Hurricane Katrina. This delay lasted for approximately nine months, from August 29, 2005 until June 5, 2006, and cannot rightly be attributed to the State. See State v. Hamilton, 2007-0581 (La.App. 4 Cir. 3/5/08), 980 So.2d 147 (finding that the interruption caused by Hurricane Katrina ceased on June 5, 2006, when the first jury trial after the Katrina took place); La.C.Cr.P. art. 579(2) (excluding times during which the defendant cannot be tried due to “any other cause beyond the control of the state” from the two year limitation for commencement of trials; State v. Brazile, 2006-1611 (La.App. 4 Cir. 5/30/07), 960 So.2d 333 (finding Hurricane Katrina was a cause beyond the control of the state for purposes of La.C.Cr.P. art. 579); State v. Stewart, 2007-0850 (La.App. 4 Cir. 4/9/08), 983 So.2d 166 (finding no speedy trial violation where defendant’s competency issues and Hurricane Katrina caused substantial delays).

The State also suggests that even after Criminal District Court reopened and jury trials resumed, the normal course of business was further obstructed by the lack of manpower within the Orleans Parish Criminal Sheriffs Office, which limited the number of inmates that could be transported to and presented in court. The State further notes that many inmates were relocated to several different | fifacilities within the Department of Corrections across the State, which made it difficult to locate and transport inmates for court appearances. Accordingly, the State contends that it cannot be held solely to blame for the delays in bringing the defendant to trial.

A careful review of the record reflects that the process of proceeding to trial was indeed plagued by the constant and repeated inability to obtain defendant’s presence in court. Specifically, the case was continued on at least twelve occasions because the defendant was not transported to court. As previously noted, the record also reflects that the defendant was housed in the South Louisiana Correctional Center in Basile, Louisiana, for a period of time.

Furthermore, it is evident that the case was delayed by the inability to determine whether the defendant was actually in custody. The longest of these delays lasted for approximately eight months, between November 13, 2006 and July 30, 2007. The minute entry from November 7, 2006, indicates that the defendant did not appear and Damien Sutton accepted service for the defendant. At the hearing on defendant’s motion to quash, the trial court noted that Damien Sutton was another defendant in Section “B” who was either related to or was friends with the defendant.

When the case appeared on the docket on November 13, 2006 and the defendant did not appear, the trial court, ostensibly believing that the defendant had been released from custody, issued an alias capias. Unbeknownst to the State, the trial court, or defense counsel, however, the defendant was actually in custody, where he remained for approximately eight months until the trial court was ^notified. Certainly, the defendant should be not be apportioned any fault for these delays. As the U.S. Supreme Court noted, “the ultimate responsibility” for bringing cases to trial “must rest with the government rather than with the defendant.” Barker, 407 U.S. at 531, 92 S.Ct. at 2192. To what extent the State should be held accountable for the delays and how heavily the cause for the delays should be weighed against the State is less clear.

In this case, the lingering effects of Hurricane Katrina greatly contributed to the delays. Nevertheless, in failing to determine that the defendant was actually in custody at some point during the aforementioned eight month period and considering, to some extent, the difficulties in effecting court appearances, the State exhibited “official negligence,” as the State was neither diligent nor malicious. Dag-gett, 505 U.S. at 656, 112 S.Ct. at 2693. Although delays due to official negligence are weighed against the State more lightly than deliberate delays, they nevertheless “fall on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution.” Id. at 657,112 S.Ct. 2686.

With respect to the third factor, defendant’s assertion of his right to a speedy trial, the record reflects the defendant did not assert any speedy trial claims prior to filing his motion for speedy trial on August 6, 2007. However, defendant was effectively denied an opportunity to assert a speedy trial claim during the aforementioned eight month period. Accordingly, we find that this factor weighs in defendant’s favor, but the limited frequency and force of defendant’s objections are noted.

|sThe fourth Barker factor involves an inquiry into the degree of prejudice suffered by the defendant due to delay in prosecution. Any prejudice to the defendant must be assessed in light of his interest (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and concern of the accused, and (3) to limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. The Court found that the most important consideration is whether the defendant’s defense was impaired by the delay. Id.

In Doggett, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520, the Court modified its analysis of the prejudice factor. Although “affirmative proof of particularized prejudice is not essential to every speedy trial claim,” an “excessive delay [can] presumptively eompromise[ ] the reliability of a trial in ways that neither party can prove, or for that matter, identify.” Id., 505 U.S. at 654-655, 112 S.Ct. at 2692-2693. The Court recognized, however, that the defendant’s degree of proof in each situation varies inversely with the government’s degree of culpability for the delay. Id. Accordingly, where the State demonstrates reasonable diligence in its efforts to bring the defendant to trial, the defendant must establish “specific prejudice to his defense,” no matter how great the delay. Id. Conversely, the longer the delay, the greater the presumption of prejudice. Id. at 656,112 S.Ct. 2686.

Defendant asserts that in addition to the anxiety he suffered during his period of incarceration, he has also suffered actual prejudice resulting from the destruction of evidence. Defendant contends that his ability to locate any potential witnesses is severely impaired due to the passage time. Additionally, when the defendant was apprehended, the police recovered U.S. currency from a shoe. Both the shoe and the money were lost when Criminal District Court flooded during Hurricane Katrina. Thus, defendant contends that he has lost the opportunity to |9retrieve any fingerprints from the money or the shoes, which he argues could possibly exculpate him. This Court addressed similar concerns in State v. Stewart, 2007-0850 (La.App. 4 Cir. 4/9/08), p. 9, 983 So.2d 166, 171-172:

Stewart claims prejudice because as a result of the time delay and Hurricane Katrina, evidence was lost. In particular, he notes that the audio and videotaped statements of the alleged eyewitness and the photographic lineup were lost in Hurricane Katrina. In addition, he complains that since Hurricane Katrina, the neighborhood where the incident occurred is now vacant, and he is unavailable to locate any potential defense witnesses. However, he does not state that he knows of any witnesses who observed the incident occur. Thus, his argument about potential witnesses is purely speculative. Additionally, the lost evidence does not prejudice Stewart but puts a heavier burden on the state to prove its case. The state will probably have to produce the sole eyewitness at trial to prove its case. The photographic lineup was reconstructed for the motion hearing. Detective Herman Franklin testified that he was able to reconstruct the photographic lineup by using the booking numbers of the persons used in the lineup.

Likewise, we find that defendant’s argument with regard to the lost evidence and alleged loss of potential witnesses is speculative. As in Stewart, supra, the loss of the evidence arguably prejudices the State in its ability to prove its case against the defendant. Accordingly, defendant has failed to demonstrate the requisite particularized prejudice owing to the delays in bringing his case to trial.

Finally, the question arises whether the period of official negligence, lasting no less than eight months nor any longer than sixteen months in this case, warrants, a finding of presumed prejudice. The length of delay in defendant’s case falls far short of the six years found to be presumptively prejudicial in Doggett, supra. After examining federal jurisprudence with regard to presumed prejudice, the Fifth Circuit concluded that generally, prejudice is presumed only in cases in which the |inpost-indictment delay lasts at least five years. U.S. v. Serna-Villarreal, 352 F.3d 225, 232 (5th Cir.2003)(citing Doggett, supra; U.S. v. Bergfeld, 280 F.3d 486 (5th Cir.2002); U.S. v. Cardona, 302 F.3d 494 (5th Cir. 2002); U.S. v. Brown, 169 F.3d 344 (6th Cir.1999); U.S. v. Shell, 974 F.2d 1035 (9th Cir.1992)). The court ultimately found that a period of three years and six months of official negligence was too short to weigh heavily in favor of a finding of presumed prejudice. Sema-Villarreal, 352 F.3d at 234-35.

Our own courts have found that official negligence delays of three and one half years and five months did not establish presumed prejudice. See State v. Shorts, 97-0050 (La.App. 4 Cir. 1/07/98), 705 So.2d 1237 (five months); State v. Willis, 94 0056 (La.App. 1 Cir. 3/3/95), 652 So.2d 586, (three and one half years). Moreover, we do not find that the delays attributable to the State were deliberate or designed to hamper the defense. See State v. Scott, 2004-1142, p. 13 (La.App. 4 Cir. 7/27/05), 913 So.2d 843, 851.

CONCLUSION

Although the delay in this case was presumptively prejudicial, upon a careful review of the Barker factors, we find that defendant failed to establish a violation of his right to a speedy trial. Accordingly, the trial court erred in granting defendant’s motion to quash. The matter is reversed and remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . At this time, the trial court recalled the alias capias.

      . The minute entry for August 16, 2007 was corrected in the September 10, 2007 minute entry, which read: "The minute entry, dated 8/16/07, amended to read, defense continuance.”

      . This Court has found delays that were at least partially attributable to Hurricane Katrina as not presumptively prejudicial; however, in most of those cases, the delay was shorter than the twenty-five month delay in the case sub judice. See State v. Stewart 2007-0850 (La.App. 4 Cir. 4/9/08), 983 So.2d 166 (holding that fifteen months between the bill of information and filing of speedy trial motion not presumptively prejudicial, but nonetheless evaluating the remaining Barker factors); State v. Chambers, 2007-0398 (La.App. 4 Cir. 8/22/07), 966 So.2d 98 (finding that delay of over twelve months was not presumptively prejudicial); State v. Scott, 2006-1610 (La.App. 4 Cir. 4/25/07), 958 So.2d 725 (holding that a delay of eighteen months was not presumptively prejudicial, but applying Barker factors); State v. Shanklin, 2006-1151 (La.App. 4 Cir. 2/14/07), 953 So.2d 84 (holding that nine-month delay was not presumptively prejudicial); State v. Dees, 2006-1198 (La.App. 4 Cir. 1/10/07), 950 So.2d 50 (finding that a delay of four months and one week was not presumptively prejudicial); State v. Bias, 2006-1153 (La.App. 4 Cir. 12/20/06), 947 So.2d 797 (six month delay not presumptively prejudicial).
      There are cases in this circuit, however, where a delay longer than the one in the instant case has not been considered as presumptively prejudicial. State v. Comadore, 2007-0976 (La.App. 4 Cir. 5/14/08), 984 So.2d 203 (finding that a period of over four years from the first bill of information to the grant of the motion to quash was not presumptively prejudicial where much of delay was caused by non-incarcerated defendant’s filings and repeated failure to appear in court, and where defendant had also not demonstrated any prejudice from the delay); State v. Gibson, 2007-0530 (La.App. 4 Cir. 10/24/07), 971 So.2d 389 (delay of thirty-four months not presumptively prejudicial where only a small portion of the delay was attributable to the State).

      . On two occasions, the trial court issued an alias capias for the defendant's arrest when he actually remained in custody.

      . The court related that the defendant was attempting to make bond and that Damien Sutton accepted service for him.

      . It should also be noted that the loss of lite evidence is directly attributable to the flooding which occurred following Hurricane Katrina shortly after the defendant's arrest and not tire result of any delays in bringing the case to trial.


text:
    Cynthia WILLIAMS and Bobby Williams v. Tabor MELANCON, Gary Ruso d/b/a All Year Round Towing and Western Heritage Insurance Company.
    No. 2008-CA-1155.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 1, 2009.

      Tamara Kluger Jacobson, Law Offices of Tamara Kluger Jacobson, L.L.C., Robert G. Harvey, Sr., Law Office of Robert G. Harvey, Sr., APLC, New Orleans, LA 70119, for Plaintiffs/Appellees.
    Matthew J. Ungarino, Emile A. Bagner-is III, Stephen M. Gele’, Kelly 0. Thi-beaux, Ungarino & Eckert LLC, Metairie, LA, for Defendants/Appellants.
    (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge Roland L. Belsome).
   ROLAND L. BELSOME, Judge.

|,Appellants/defendants, Tabor Melan-con, All Year Round Towing and Western Heritage Insurance Company (collectively Appellants), appeal the trial court’s granting of partial summary judgment on the issue of liability in favor of appellee/plain-tiff, Cynthia Williams.

This Court reviews the granting of summary judgment de novo using the same criteria considered by the trial court. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. If no genuine issue of material fact is presented through the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, then the mover is entitled to judgment as a matter of law. La. C.C. P. art. 966.

This litigation arises from a series of automobile accidents occurring near the Louisa Street exit on westbound Interstate 10 in New Orleans on the night of February 4, 2004. Joseph Johnson’s deposition testimony claims that his vehicle was struck by a phantom vehicle causing his vehicle to bounce off of the rail running along the driver side of the interstate sending his vehicle into the far right | Jane. Mr. Johnson testified that once his vehicle came to a complete stop he initiated his emergency blinkers. At that time he witnessed two vehicles pass. Then he saw Ms. Williams’ vehicle approach in the right lane, come to a stop and attempt to move to the middle lane to travel around his vehicle.

Mr. Melancon was driving a tow truck westbound over the high rise of Interstate 10 when he noticed Ms. Williams’ vehicle stopped in the right lane. He stated that he attempted to stop but was unable to do so and slid sidewise jack-knifed and struck Ms. Williams’ vehicle sending it into the middle lane of traffic. A number of other vehicles collided with the tow truck following the initial contact with Ms. Williams’ vehicle.

The partial summary judgment granted by the trial court focused solely on the accident between Ms. Williams’ and Mr. Melancon’s vehicle. The trial court determined that there were no genuine issues of material fact as to Mr. Melancon’s fault and therefore granted the summary judgment on the issue of liability.

By all accounts of the deposition testimony Mr. Johnson acted prudently in initiating his emergency lights and as Ms. Williams approached Mr. Johnson’s vehicle she maintained control of her vehicle and was attempting to drive around the wreckage. Mr. Melancon stated he saw the vehicles but was unable to maintain control of his vehicle and stop. The appellants attempt to deflect fault from Mr. Melancon by asserting the sudden emergency doctrine and fault of the phantom driver and Mr. Johnson. However, they fail to establish a genuine issue of material fact regarding the necessary factors to overcome Mr. Melancon’s presumption of fault.

|sLSA-R.S. 32:81 governs a vehicle when it is following another vehicle and in pertinent part provides:

A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

The rebuttable presumption regarding rear-end collisions is that a following motorist who strikes a preceding motorist from the rear has breached the standard of conduct prescribed by this statute and is therefore liable for the accident. “That rule is based on the premise that a following motorist whose vehicle rear-ends a preceding motorist either has failed in his responsibility to maintain a sharp lookout or has followed at a distance from the preceding vehicle which is insufficient to allow him to stop safely under normal circumstances.” Brandon v. Tros-clair, 2000-2374 (La.App. 4 Cir. 10/17/01), 800 So.2d 49, 60. A following motorist may, however, rebut the presumption of negligence by proving the following things: (1) that he had his vehicle under control; (2) that he closely observed the preceding vehicle; and (3) that he followed at a safe distance under the circumstances. Id.

The record is void of any evidence to establish the elements essential to rebut the presumption of Mr. Melaneon’s fault. During his deposition testimony he does not even contend that he was driving at a safe speed and distance given the rainy conditions. Contrarily, he acknowledged that larger commercial vehicles need to maintain a greater distance from lead vehicles but could not remember what that distance was. He further stated that he was unable to stop because of the rain. We find that Mr. Melancon was negligent in his failure to maintain control of |4his vehicle and operate it safely in the adverse weather conditions which resulted in the collision with Ms. Williams’ vehicle.

The following motorist may also avoid liability by proving that the driver of the lead vehicle negligently created a hazard, which he could not reasonably avoid. This rule is grounded in the sudden emergency doctrine. Daigle v. Mumphrey, 1996-1891, (La.App. 4 Cir. 3/12/97), 691 So.2d 260, 262. Under this doctrine, a driver without sufficient time to weigh all the circumstances and whose actions did not contribute to the emergency cannot be assessed with negligence even though a subsequent review of the facts discloses he may have adopted a safer, more prudent course of conduct to avoid an impending-accident. Jackson v. Town of Grambling, 29,198, 29,199 (La.App. 2 Cir. 2/26/97), 690 So.2d 942. If the driver is shown to have proceeded carefully and prudently, the emergency will not be seen as arising from his or her own negligence. Marigny v. Allstate Ins. Co., 95-0952 (La.App. 4 Cir. 1/31/96), 667 So.2d 1229. However, this Court has consistently held that the doctrine does not apply to a defendant that is negligent in his own actions. State Farm v. LeRouge, 07-0918, p. 18 (La.App. 4 Cir. 11/12/08), 995 So.2d 1262, 1275 and Du-combs v. Nobel Ins. Co., 03-1704, p. 6 (La.App. 4 Cir. 7/21/04), 884 So.2d 596, 600, citing Clement v. Griffin, 91-1664, 92-1001, 93-0591, 93-0592, 93-0593, 93-0594, 93-0595, 93-0596, 93-0597, 93-P0648 (La.App. 4 Cir. 3/3/94), 634 So.2d 412, 439.

Accordingly, we affirm the trial court’s granting of the partial motion for summary judgment.

AFFIRMED.


author: SAUNDERS, Judge.

text:
    Kenneth JOHNSON v. CITY OF PINEVILLE, et al.
    No. 08-1234.
    Court of Appeal of Louisiana, Third Circuit.
    April 8, 2009.

      Herman M. Savoie Jr., Gregory R. Ay-mond, Attorneys at Law, Alexandria, LA, for Plaintiff Appellant, Kenneth Johnson.
    Mark Felipe Vilar, Aaron L. Green, Vi-lar & Elliott, Alexandria, LA, for Defendant Appellee, City of Pineville.
    Leah M. Penny, Faircloth, Vilar & Elliott, Alexandria, LA, for Defendant Appel-lee, City of Pineville, Ellen Melancon.

      Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

| ¶ FACTS AND PROCEDURAL HISTORY:

This appeal arises from a judgment of the Ninth Judicial District Court, which denied Kenneth Johnson’s (hereinafter “Johnson”) application for a writ of mandamus and petition for statutory penalties and attorney’s fees in connection with a public records request to the City of Pine-ville (hereinafter “Pineville”). On October 3, 2007, Johnson made several public records requests to Pineville, two of which are relevant to this appeal.

Johnson first requested, “[t]he arrest report and/or booking entry for any individuals who were arrested during the month of September 2007, as a result of a physical altercation with any member of the Pine-ville Police Department.” Pineville denied Johnson’s request for the booking entries, stating that “[a]ll of the records requested are part of pending criminal litigation which can be reasonably anticipated and are therefore exempt from disclosure pursuant to La. R.S. 44:3 — ‘records of prose-cutive, investigative, and law enforcement agencies and communication districts.’ ” Pineville later turned over copies of the booking entries to Johnson on December 18, 2007, the morning of the proceeding giving rise to this appeal.

Pineville told the trial court, through its attorney, Jimmy R. Faircloth, that its denial of Johnson’s first request for access to its booking entries of arrested persons had been the result of “an oversight on the part of the police department.” Faircloth said that Pineville did not discover until the morning of the hearing, two months after Johnson’s initial request, that booking entries of arrested persons were “contained in a book that is open on the desk at the police station for everyone to see.... And, lo and behold, when they went to make a copy of it yesterday, it [was] in there.”

12Johnson’s second request asked for, “[a]ll e-mails to and from Rich Dupree on his City e-mail account, and which [Pine-ville has] segregated from those exempt under the Public Records Law, in connection with that lawsuit entitled City of Pineville v. Gregory Aymond.” Johnson further requested that the e-mails be provided to him on a CD (compact disc), DVD (digital video disc), or flash drive at his own expense. Pineville objected to Johnson’s request for digital copies of the public records, stating that it would “undermine the Clerk’s obligation to protect the integrity of the City’s records.” Pineville went on to inform Johnson, “[a]s previously communicated to you, documents responsive to this request total 13,574 emails through July, 2007. The copying charges for these items is $3,531.00. Retrieving copies of these items will require approximately seven (7) working days.” Pineville had also copied the requested emails onto the hard drive of an off-network computer and offered to allow Johnson to review the e-mails on that computer.

In its reasons for judgment, the trial court did not address Pineville’s failure to timely allow Johnson access to its booking entries of arrested persons nor did it grant him any relief. Further, the trial court’s judgment denied Johnson’s request for electronic copies of the requested e-mails, citing the risk that the e-mails might be altered. Johnson appeals, asserting three assignments of error.

ASSIGNMENTS OF ERROR:

1. Did the City of Pineville violate La. Const, art. 12 § 3 and the Public Records Act when it failed to timely copy or make available for inspection by a qualified member of the public the booking entries of arrested persons in that city?
|32. Did the trial court err in failing to award penalties and attorney fees in accordance with La.R.S. 44:35(D)?
3. Did the trial court err when it denied a qualified member of the public the right to obtain electronic copies of public records on the basis that those copies might later be altered?

ASSIGNMENT OF ERROR # 1:

Johnson asserts that Pineville violated the Public Records Act and La. Const, art. 12, § 3, when it denied him the right to timely inspect or copy certain booking entries of arrested persons in that city. We agree.

It is well settled in Louisiana law that “[t]he right of the public to have access to the public records is a fundamental right, and is guaranteed by the constitution.” Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984) (citing La. Const, art. 12, § 3). There is no doubt that the booking entries of an arrested person are public records. Louisiana Code of Criminal Procedure Article 228(B) (emphasis added) states:

A person is booked by an entry, in a book kept for that purpose, showing his name and address, a list of any property taken from him, the date and time of booking, and the submission of a booking information summary as provided for in Paragraph C of this Article ... The book and booking information summaries shall always be open for public | ¿inspection.

Pineville was incorrect in classifying the records as confidential under La.R.S. 44:3. Had Pineville read the entirety of La.R.S. 44:3(A)(4)(a), the city would have noticed that the requested booking entries are specifically mentioned as being part of the public record. Louisiana Revised Statutes 44:3(A)(4)(a) states, in pertinent part, that “[rjecords of the booking of a person as provided in Louisiana Code of Criminal Procedure Article 228 ... shall be a public record.” Therefore, Pineville violated La. Const, art. 12, § 3 and the Public Records Act by denying Johnson access to the booking entries of arrested persons, which are public records.

ASSIGNMENT OF ERROR # 2:

Johnson argues that the trial court erred in failing to award him attorney fees and penalties as a result of Pineville’s failure to comply with the Public Records Act and the Louisiana Constitution. We agree.

Louisiana Revised Statutes 44:35 provides that:

A. Any person who has been denied the right to inspect or copy a record under the provisions of this Chapter, either by a final determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his request without receiving a final determination in writing by the custodian, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs, and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
D. If a person seeking the right to inspect or to receive a copy of a public record prevails in such suit, he shall be awarded reasonable attorney’s fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney’s fees or an appropriate portion thereof.

|fiThe record indicates that over two months had passed before Pineville finally produced copies of the booking entries Johnson had requested. This time period is clearly outside of the five-day period provided for in La.R.S. 44:35. Therefore, it would appear that Johnson is entitled to be awarded reasonable attorney’s fees and other costs of litigation as provided for in La.R.S. 44:35(D). Pineville contends, however, that Johnson did not “prevail” in his suit, as required by La.R.S. 44:35(D), because Pineville handed Johnson the requested public records on the morning of trial, and, thus, the trial court’s judgment did not reflect anything regarding that request. Nevertheless, it was necessary for Johnson to institute proceedings in accordance with La.R.S. 44:35(A) to assert his fundamental right of access to the public records, which access had been wrongly denied. Johnson’s cause of action for an award under La.R.S. 44:35(D) arose after the statutory time delays lapsed. Accordingly, Johnson is hereby awarded reasonable attorney’s fees in the amount of $2,500.00 and all costs associated with this litigation pursuant to La.R.S. 44:35(D).

Furthermore, La.R.S. 44:35(E)(1) goes on to state:

If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification.

It appears from the record before us that Pineville’s denial of access to the booking entries of arrested persons was arbitrary and capricious. This court finds Pineville’s initial assertion that it believed the records were confidential unconvincing, noting that the requested records and their public nature are | (¡specifically mentioned in La.R.S. 44:3, the statute which Pineville partially quoted in its written denial of Johnson’s request. Though we find Pineville’s action to be arbitrary and capricious, we do not believe this case is exceedingly egregious or without mitigating factors. Accordingly, as permitted by La. R.S. 44:35(E)(1), Johnson is hereby awarded fifty dollars per day, exclusive of Saturdays, Sundays, and legal public holidays from the date of his request, October 3, 2007, to the date he received the records, December 18, 2007.

ASSIGNMENT OF ERROR # 3:

Finally, Johnson asserts that the trial court erred in ruling that the public’s fundamental right of access to public records does not include the right to obtain electronic copies of those records due to the risk of alteration. We agree.

The Louisiana Constitution Article 12, § 13 states, “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” This fundamental right is reflected in Louisiana jurisprudence, which is replete with examples of the judicial respect for the public’s fundamental right of access to the public records. Our supreme court has generally stated that, “whenever there is any doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right of access.” Landis v. Mor-eau, 00-1157 (La.2/21/01), 779 So.2d 691, 694. The court has recognized the legislature’s intent to provide the public with access to the public records in the least restrictive way possible. Title Research Corp., 450 So.2d 933. 17“To allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights.” Id. at 936.

As technology has advanced, it has become necessary for the courts of this state to reiterate, in various ways, just how strong the public’s right of access to public records is. In 1984, our supreme court ruled that a qualified member of the public could reproduce public records on microfilm, noting that the crumpling of one piece of paper and disordering of various records did not trespass on the custodian’s duty to preserve the public records. Title-Research Corp., 450 So.2d 933. Then, in 1995, the Louisiana First Circuit Court of Appeal found that members of the public could use postal service to request copies of public records, rejecting the Baton Rouge District Attorney’s argument that mail-in requests would be overly burdensome on his office. Elliott, 664 So.2d 122. More recently, in 2004, the Louisiana Second Circuit Court of Appeal held that the public’s right of access to public records included the x-ight to use a hand-held or portable scanner to electronically i’epro-duce public records. First Commerce Title Co., Inc., 887 So.2d 716, imit denied, 896 So.2d 66 (La.2005).

Now, this court must decide if the public’s fundamental right of access to the public records includes the right to have those recoi’ds i'eproduced on CD, DVD, or flash dxrve. Louisiana Revised Statutes 44:31(B)(1) provides to “any person of the age of majority!,]” the right to “inspect, copy, or reproduce any public record.” In addition, La.R.S. 44:32(C)(l)(d) states that, “[a]ny person, as provided for in R.S. 44:31, may request a copy or reproduction of any public record and it shall be the duty of the custodian to provide such copy or reproduction to the person so requesting.” The “clerk-custodian may not inquire into [a member of the public’s] 18choice of medium[,]” when exercising his rights under the above statutes. Title Research Corp., 450 So.2d at 938. Thus, it would appear that requesting reproduction of the public records on CD, DVD, or flash drive is within Johnson’s rights under the statute.

Louisiana Revised Statutes 44:35(B) places the burden of justification for withholding the records on the custodian. In its effort to provide such justification, Pineville argues, in brief and at oral argument, that permitting electronic reproduction of public records would allow members of the public to undetectably alter the copies they receive. To prevent such alteration, Pineville has insisted on providing Johnson with paper copies of some 13,574 e-mails. We note, however, that the statute only requires the custodian of public records maintain “such vigilance as is required to prevent alteration of any record while it is being examined [.]” La.R.S. 44:32(A) (emphasis added). Nothing in the statute suggests that the custodian is responsible for alterations made to copies of public records once those copies have left the custodian’s care.

Pineville never argued that the records might be compromised while in the custodian’s possession, only that copies of the records might later be altered elsewhere. It is clear that there is no real possibility of compromising the original records if the city itself is making the copies. Ellen Melancon (hereinafter “Melancon”), the Public Records Custodian for the City of Pineville, testified that all Rof the e-mails at issue had been copied and put on another computer for public review, leaving the original e-mails on other computers and servers, inaccessible to the public. Then, Jeff Ard (hereinafter “Ard”), the Information Systems Manager for the City of Pineville, testified that he had copied the requested e-mails onto an off-network computer and that those e-mails could, in turn, easily be copied onto a CD or transferred to a flash drive. When questioned further, Ard also testified that both hard copies and electronic copies are at risk of being altered and that it would be easy and inexpensive for Pineville to keep an original copy of the e-mails for future comparison.

We live in an age of technology in which private individuals, as well as government, can use information technology to create astronomical numbers of documents. To allow Pineville to create such voluminous records using information technology and then deny the use of that same technology to the public reviewing those records would strike directly at the heart of the public’s fundamental right of access to public records that is guaranteed by the Louisiana Constitution. When confronted with public records of goliath proportions, the average citizen’s fundamental right of access would prove illusive if he is denied the opportunity to use the very technology which helped create the overwhelming amount of information. To reproduce over 13,000 e-mails on paper, when other safe, efficient, and reasonable means are available, is unnecessarily laborious, costly, wasteful, and conflicts with the legislative intent of making public records as available as possible.

Given that the public has had access to copies of public records for years, which copies have always been at risk of alteration, we find no merit in Pineville’s contention that the risk of alteration outside of the custodian’s care is a valid reason | infor denying a record’s reproduction in any of the requested formats. Nor is there any merit to Pineville’s assertion that providing a member of the public with electronic copies of public records would place an overly burdensome requirement on the city to retain original copies of the documents. Because any copy is at risk of alteration, Pineville’s interest in keeping originals for comparison would be exactly the same, even if only required to provide the public with paper copies.

The public’s right of access to the public records “must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally provides otherwise.” Title Research Corp., 450 So.2d at 936. We find no specific law prohibiting the reproduction of public records in electronic format or requiring that public records be reproduced on paper. This court finds that the reproduction method which Johnson seeks to use, i.e., having the custodian reproduce the records on CD, DVD, or flash drive, is safe and reasonable. Moreover, Johnson has offered to pay for this method of reproducing the records at his own expense. This court recognizes that we are dealing with a developing area of law and we are quick to emphasize that this opinion does not stand for the proposition that every member of the public should always be allowed to reproduce the public records in any way he chooses. In this case, the custodian of the public records already had access to and sufficient understanding of the requested method of reproduction, which posed no risk to the integrity of the original records. Given that this information technology is readily available and is easily used and understood, we find no reason why the public should not be allowed the convenience of having electronic copies provided to it at the legally allowed cost.

CONCLUSION:

For the above stated reasons, we reverse the judgment of the trial court and | naward Johnson attorney’s fees in the amount of $2,500.00, court costs, and penalties of $50.00 per day from October 3, 2007 to December 18, 2007, exclusive of Saturdays, Sunday, and public legal holidays, pursuant to La.R.S. 44:35. It is further ordered that Pineville provide Johnson with electronic copies of the requested, segregated e-mails, in the manner previously requested.

REVERSED.

      . The City of Pineville and Ellen Melancon, the Public Records Custodian for the City of Pineville, were made defendants in that action and are herein collectively referred to as "Pineville.”

      . Flash drives are small data storage devices that use flash memory and have built-in USB connections. http://www.techterms.com/ definition/flashdrive (last visited 3/24/09).

      . Louisiana Revised Statutes 44:1-44.

      4. Louisiana Code of Criminal Procedure Article 228(C) provides:
      (1) At the time of booking, the peace officer causing the arrested person to be booked shall deliver to the person at the jail or police station who accepts custody of the arrestee a booking information summary which shall include at least the following information:
      (a)The proper legal name of the arrestee, if known.
      (b) The charge or charges upon which the person was arrested and the name of the person making the arrest.
      (c) A short recitation of the facts or events which caused the defendant to be arrested.
      (d) The names of all other persons arrested as a result of the same events or facts.
      (2) If the peace officer presenting an ar-restee for booking is unable to submit a complete booking information summary, he shall provide the person receiving custody of the arrestee a written statement or form, explaining why a complete booking information summary cannot be presented.

      . See City of Baton Rouge/Parish of East Baton Rouge v. Capital City Press, L.L.C., 07-1088, 07-1089 (La.App. 1 Cir. 10/10/08), 4 So.2d 807; First Commerce Title Co., Inc. v. Martin, 38, 903 (La.App. 2 Cir. 11/17/04), 887 So.2d 716, writ denied 04-3133 (La.3/11/05), 896 So.2d 66; Elliott v. Dist. Att’y of Baton Rouge, 94-1804 (La.App. 1 Cir. 9/14/95), 664 So.2d 122, writ denied, 95-2509 (La. 12/15/95), 664 So.2d 440; Cummings v. Kempf, 570 So.2d 133 (La.App. 3 Cir. 1990), writ denied, 575 So.2d 390 (La.1991); Title Research Corp. v. Rausch, 450 So.2d 933 (La.1984).

      . Louisiana Revised Statutes 44:35(B) provides:
      In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may view the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court.