AG Jeff Landry loses public records lawsuit against Advocate reporter

Attorney General Jeff Landry lost his fight Thursday to withhold a public record from Andrea Gallo, a reporter at the Advocate | Times-Picayune, who was seeking details about sexual harassment allegations at the Louisiana Department of Justice. Judge Timothy Kelley of the 19th Judicial District in Baton Rouge said he would release a document detailing allegations made against one of Landry’s top deputies after he redacts the names and identifying information of people who either accused that official of harassment or witnessed it.

“We’re thrilled that Judge Kelley agreed that the public’s right to know what is going on in their government is of paramount importance,” said Gallo after the hearing. During Thursday’s hearing, she said, “Normally it’s not the requestor who gets sued by their own government simply for requesting a record.”

Kelley ruled that the public’s right to know how its government operates outweighs any expectation of privacy held by Pat Magee, who was accused of sexual harassment and heads Landry’s criminal division. Gallo’s attorney, Scott Sternberg, said he hoped the outcome of the case would prevent other elected officials from trying to intimidate citizens requesting public records. Sternberg represents several media organizations in the state on government  records requests and is also on the board of directors for the Louisiana Press Association.

“Hopefully, other public records custodians around the state are going to see this and they are going to think twice about suing a requester,” Sternberg said. 

Kelley ruled at the end of a hearing that lasted about two hours and included testimony from Gallo and arguments from the attorneys on both sides.

Landry sued Gallo on Feb. 5, almost two months after she filed a public records request to the attorney general’s office seeking the records of a sexual harassment investigation into Magee. The suit has attracted national attention with reporting by the Washington Post and press freedom advocates that have criticized Landry’s lawsuit as a retaliatory act and an attempt to discourage public scrutiny. 

Arguing for Landry, government attorney Alicia Wheeler said because the document contained allegations against Magee that a subsequent investigation did not confirm, releasing the document would invade Magee’s privacy and only satisfy a public interest for “schoolyard gossip.” Referring to an editorial that ran in the Advocate encouraging others to seek the same record Gallo sought, Wheeler argued that at least some of the public’s interest that Gallo said surrounded the case was manufactured by Gallo and her newspaper.

However, Gallo testified that her initial reports into the sexual harassment investigation received about 6,000 page views online but increased to 40,000 after Landry sued her, suggesting it was the attorney general who unwittingly created most of the public interest.

Sternberg turned Wheeler’s words against her to point out that the matter is of great interest to the public. 

“It’s schoolyard gossip about the vice principal,” Sternberg said.

Having inspected the document privately, Judge Kelley found it to be an important matter of government business and thus of public interest.

“It is paramount that the public have trust that our government is transparent,” Kelley said in his ruling.

Some state lawmakers in Landry’s own party also agreed. Sen. Sharon Hewitt, R-Slidell, praised the judge’s ruling Thursday.

“I applaud the judge’s decision, but I’m sad that it was even necessary. It’s time for every elected leader to recognize that in 2021 sexual harassment will not be tolerated at any level,” Hewitt said. “We have to raise expectations and embrace higher standards of transparency and disclosure. No one is above the law and should get a pass because of their government position.”

Aside from ordering the document’s disclosure, Kelley told Landry’s office it had to pay 25 hours worth of Gallo’s attorney’s fees at a rate of $225 per hour, bringing that total to $5,625. In his closing remarks, the judge complimented the lawyers on both sides and said Sternberg likely deserved more than the court could award. 

“The losers are the Louisiana taxpayers who will foot the bill for the plaintiff and the defendant in Mr. Landry’s unnecessary legal assault against Andrea Gallo,” said Peter Kovacs, editor for the Advocate | Times-Picayune. 

Kelley denied Gallo’s request that Landry be penalized for arbitrarily and capriciously violating Louisiana’s public records law, which would have carried a $100 per day fine for each day he withheld the document. 

“I do not find in any way that the AG or anybody involved in this put their personal interests ahead of the public’s,” he said.

Despite its loss on the central matter of the case, Landry’s office celebrated Kelley’s finding that he did not violate the law in withholding the record.

“As Judge Kelley declared our office ‘followed the letter of the law…sought guidance from the Court and did everything a public official must do;’ we were ‘not arbitrary or capricious in any way;’ we were ‘diligent’ in handling the matter,” Assistant Attorney General Angelique Freel said in a press release Thursday afternoon. 

LANDRY’S TRACK RECORD

Landry has a track record of generally ignoring requests for information about sexual harassment complaints in his office.

In 2019, he refused to release information about sexual misconduct to the Louisiana Legislative Auditor. Women lawmakers had asked the auditor to put together a comprehensive report on allegations and consequences of sexual misconduct across state government after a top aide to Gov. John Bel Edwards resigned over sexual misconduct. Twenty-four state agencies provided the auditor with the information requested, but Landry refused to do so.

Last month, Landry also submitted a report to the Louisiana Division of Administration regarding sexual harassment allegations in his office, failing to disclose — as required by state law — that he had disciplined Magee following a sexual harassment complaint.

Landry docked Magee more than a month’s worth of pay and sent Magee to emotional sensitivity and leadership training as a result of the complaint. Magee’s pay reduction is about $20,000 — the same amount of money Landry’s office had to spend on outside attorneys to investigate the complaints made against Magee, according to the Advocate.

Landry said he left Magee’s punishment off the legally-required state report earlier this year because it wasn’t technically related to sexual harassment. His office said Magee was not found to have engaged in sexual harassment, though Landry was punishing him in part for using “sexual slang” and “making unprofessional comments about the appearance of employees.” 

As recently as the day before the hearing, Landry’s office continued to argue against the release of the documents that the court ordered him to share with Gallo Thursday. 

In response to a records request the Illuminator made Feb. 8 for documents regarding Magee’s misconduct case, Landry’s office contacted a reporter Wednesday — the night before Gallo’s court hearing — and said attorneys couldn’t produce an investigative file into the complaints against Magee because it was protected by “attorney-client and work product privileges as well as a right to privacy.” Landry’s office also said it didn’t have the investigative file “in our possession.” 

At the same time, in a confusing statement, Landry’s office also wrote it would “reserve the right to assert additional exemptions after reviewing the document” — referring to the investigative file on Magee that Landry’s office had already said wouldn’t be released at all. 

The attorney general did provide some additional documents concerning the Magee investigation the day before the court hearing in the Gallo lawsuit. 

He released reports showing Magee went through online training on “building trust,” conflict management, emotional intelligence, professionalism in the workplace and “situational leadership” in January. The records also included a letter from Landry’s office explaining that Magee’s pay reduction would be spread out over each pay period over the course of 2021. If Magee left his job before the end of the calendar year, the full pay dedication would apply retroactively, according to the documents.

But the documents didn’t indicate what Magee has been accused of doing in the first place or the details of what had been substantiated through the independent investigation, which resulted in the disciplinary action in the first place. That’s the information Gallo had been seeking when she was sued.