THORNTON v. DEPARTMENT OF PUBLIC SAFETY

CARTER, Judge.

This is an appeal from a trial court judgment ordering the Department of Public Safety and Corrections (Department) to allow the inspecting and microfilming of traffic accident reports without charge.

FACTS

Plaintiff, Carl J. Thornton, requested permission from defendant, the Department, to examine and microfilm uniform motor vehicle accident reports without charge. The defendant refused and insisted that plaintiff pay a five dollar fee for each report copied. Plaintiff then filed suit for mandamus, injunction, and declaratory judgment seeking to compel the defendant to comply with his request. The trial judge rendered judgment in favor of plaintiff enjoining defendant from prohibiting plaintiff from inspecting and microfilming uniform motor vehicle records. Defendant's uniform motor vehicle records were declared was to be public records, and defendant was ordered to allow plaintiff to inspect and microfilm uniform motor vehicle accident reports. From this judgment, defendant appeals.

Plaintiff answered the appeal, requesting damages for frivolous appeal under LSA-C.C.P. art. 2164 and additional attorney's fees pursuant to LSA-R.S. 44:35 D.

ISSUE

Whether plaintiff may, without payment of a fee, inspect, copy, or reproduce traffic accident reports in the custody of the Department.

LAW

LSA-R.S. 44:1 et seq., the Public Records Law, provides for the inspection and copying of public records. It is undisputed that the traffic accident reports herein are public records. It is also undisputed that plaintiff may copy, microfilm, or have copies of the records made by the defendant. The entire dispute centers around whether the defendant may charge a fee when plaintiff makes his own copies.

LSA-R.S. 44:31 provides:

The Louisiana Supreme Court in Title Research Corporation v. Rausch, 450 So.2d 933 (La.1984) interpreted this statute as follows:

In Title Research, the Supreme Court allowed the microfilming of conveyance and mortgage records for commercial purposes without charge when the copying was done during normal business hours and in a safe manner. The Court further stated that:

Defendant attempts to distinguish Title Research from the instant case by asserting that there are no statutes providing specific fees for the reproduction of mortgage and conveyance records, while there is a statute, LSA-R.S. 32:398 D(4), which prescribes specific charges for the reproduction of traffic accident reports.

Defendant argues that LSA-R.S. 32:398 D(4) supports the charging of a fee of five dollars per report even when the plaintiff microfilms the reports.

LSA-R.S. 32:398 D(4) provides:

Clearly, LSA-R.S. 32:398 D(4) authorizes the charging of a fee only when the copies are provided by the governing authority. In a situation where the copies are not provided, LSA-R.S. 44:31 applies.

It is clear from a reading of this statute and the other statutes cited that the custodian of a public record may charge a reasonable fee for providing a copy of that record to a person requesting it. The custodian may in fact charge a reasonable fee, a reduced fee, or no fee for the copy he provides. However, the law does not permit the custodian to charge a fee to a person who only wishes to examine or review a public record.

Defendant argues that the legislature in enacting LSA-R.S. 32:398 D(4) intended that persons who copy public records pay for the privilege. However, a careful reading of the applicable statutes indicates otherwise. If there is to be a charge assessed to persons who inspect, examine, or microfilm public records, the legislature will have to provide it.

FRIVOLOUS APPEAL

Plaintiff argues that the appeal herein is frivolous within the meaning of LSA-C.C.P. art. 2164 and seeks damages.

This court has addressed the issue of frivolous appeal on numerous occasions. Pickering v. City of Baton Rouge, 442 So.2d 522 (La.App. 1st Cir.1983); Weatherall v. Department of Health and Human Resources, 432 So.2d 988 (La.App. 1st Cir. 1983), writ denied, 437 So.2d 1150 (La. 1983); Sample v. Sample, 432 So.2d 376 (La.App. 1st Cir.1983). We have consistently held that where contentions on appeal are without merit, but raise legitimate issues, damages for frivolous appeal are not allowed. Sample v. Sample, supra.

In the instant case, defendant raises a legitimate question relative to whether a custodian of traffic accident reports may charge a fee to a person wishing to examine, inspect, and microfilm the reports. Accordingly, damages for frivolous appeal are not allowed.

ADDITIONAL ATTORNEY'S FEES

The trial judge awarded plaintiff attorney's fees of $300.00 pursuant to LSA-R.S. 44:35 D. Plaintiff now seeks an increase because of the additional legal work required for the appeal.

Attorney's fees are allowed by the court only when there is a statute or a contract that provides for them. Killebrew v. Abbott Laboratories, 359 So.2d 1275 (La. 1978).

LSA-R.S. 44:35 D provides:

Under similar statutory provisions, we have allowed an increase in attorney's fees when the increase was warranted because the appeal had necessitated additional work on the attorney's part. Achord v. H.E. Weise Construction Company, 422 So.2d 1248 (La.App. 1st Cir.1982); Trigg v. Camper Village, Inc., 424 So.2d 1085 (La. App. 1st Cir.1982), writ denied, 429 So.2d 134 (La.1983). Plaintiff's attorney herein answered the appeal, prepared an appellate brief, and appeared at oral arguments. An additional award of $150.00 under these circumstances is reasonable.

CONCLUSION

After reviewing the above statutes and cited jurisprudence, we affirm the trial court judgment enjoining defendant from prohibiting plaintiff from inspecting and microfilming motor vehicle records, declaring motor vehicle accident reports to be public records, and ordering defendant to allow plaintiff to examine, inspect, and microfilm uniform vehicle accident reports without charge. Judgment is rendered awarding plaintiff additional attorney's fees of $150.00. Costs in the amount of $177.46 are assessed against defendant.

AFFIRMED IN PART, RENDERED IN PART.