On Feb. 11, after four months of waiting for Clerk of Criminal District Court Kimberly Williamson Butler to honor several public records requests, Gambit Communications Inc. sued Butler for failing to turn over public records the newspaper had sought since Oct. 5, 2004.
According to state law, public officials must fulfill a public records request within five days.
Arguably, part of Butler's failure to turn over the requested records could be the result of a mere miscommunication or misunderstanding. On the other hand, some of the few responses she made included hundreds of pages of documents — but with very specific parts of those records omitted. Often, the omitted items corresponded to material that could verify or disprove claims by sources for Gambit Weekly's cover story.
Gambit's suit also alleges that Butler's office tried to charge the newspaper unreasonable copying fees — and then illegally add sales tax to those charges.
According to Louisiana's public records law, custodians of public records are allowed to charge a reasonable amount for copies of records. In the clerk's December invoice to Gambit — produced in response to the newspaper's second public records request a month earlier — Butler's office incorrectly calculated the subtotal it sought to collect and then attempted to add sales tax on top of that amount. Eventually, the office revised the total and removed the tax, but only after being told by Gambit that, according to mayoral press secretary Tami Frazier, the clerk's office was not a sales-tax remitter, did not pay sales tax to the city, and therefore could not charge or collect such a tax.
Butler says that the attempt to charge sales tax was "not intended as an antagonistic thing," but was instead an honest mistake.
Then there was the issue of serving Butler with the lawsuit.
In most cases, hauling a public official into court is simple: just set a court date and deliver the summons, citation or subpoena.
Not so with Butler.
She has been on medical leave for several months — but she has proved to be adept at dodging personal service. Gambit obtained a court order for a special process server to locate and serve Butler, but when he attempted service on Butler at her home he was told by Butler's daughter that the clerk was upstairs, recovering, and unable to come to the door.
On Wednesday, Feb. 23, by sheer coincidence, Gambit reporter Katy Reckdahl ran into Butler in the halls of a local hospital. Butler said that she'd heard that Gambit was suing her office and that she'd like to resolve the matter without going to court. She gave her work cell phone number and asked to be called the following Monday, Feb. 28. Reckdahl called as instructed and left a message on Butler's voicemail. Butler returned the call on Friday, March 4, and said to contact her chief deputy, Keith Barnes, on Monday, March 7, adding that they would do their best to turn over the missing documents within 48 hours.
"I'm not sure what the problem was in the first place," Butler said. "My heart is the same — there's nothing in me that wants to fight the media or withhold information."
Last week, Gambit traded daily phone calls with Barnes, who promised that they were "close" to being able to respond with all of the missing documents. By press time, Gambit had obtained no additional documents.
Since Gambit's suit was filed, three court dates have come and gone without Butler's appearance — even though Gambit attorney John Litchfield had written several letters and made several phone calls, as a courtesy, to Butler's attorney, Deborah Wilson, to inform her of the court dates. Neither the letters nor the phone calls were returned. Chief Deputy Barnes confirmed to Gambit that Butler's office received a mailed copy of the newspaper's lawsuit. Despite that, Butler failed to appear at any of the hearings.
"In almost 30 years of practicing law, during which time I have represented several public offices in a wide variety of matters, I have never seen a public official or a custodian of a public record attempt to avoid service," Litchfield says. "It is unfortunate that Mrs. Butler has chosen to go this route, but it will not keep Gambit from having its day in court."
Under state law, Butler can be served by delivering a copy of the citation and petition to any employee in her office who is "of suitable age and discretion." The newspaper attempted to serve her personally as a professional courtesy. After repeated evasions by Butler, however, Litchfield had the process server deliver the citation and petition to the clerk's office last Friday (March 11).
A hearing on the suit, which demands attorney's fees as well as public records, has been set for 10:30 a.m. Thursday, March 17, before Civil District Court Judge Lloyd Medley. Appropriately, the hearing comes during Sunshine Week, when newspapers across the country are calling attention to open-records and Freedom of Information issues.