Opinion Number

Dear Mr. Kemp:

Your request for an opinion of this office has been received and directed to the undersigned for research and reply. Your question, as I appreciate it, is:

Must the District Attorney make public those records maintained in operating the Twenty-First Judicial District Pre-Trial Intervention Program?

The Twenty-First Judicial District Pre-Trial Intervention Program allows non-violent, first-time offenders the opportunity to avoid prosecution on the alleged offense by completing certain requirements. If a person successfully completes the program, the District Attorney will decline to prosecute and the pending charge is "dead filed." If the person is terminated for noncompliance with the program, he will be placed back into the court system and prosecuted on the pending charge.

The applicable law controlling the above question is Louisiana Public Records Law, La. R.S. 44:1 et seq. In particular, La. R.S. 44:3(A)(1) provides in pertinent part:

A. Nothing in this chapter shall be construed to require disclosures of records, or the information contained therein, held by the offices of the . . . district attorneys . . ., which records are:

(1) Records pertaining to pending criminal litigation or any criminal litigation which can be reasonably anticipated, until such litigation has been finally adjudicated or otherwise settled.

There are two competing interests at stake here. One is the program's promise of confidentiality to its participants. On the other hand, there is the duty to interpret the public records laws liberally so as to extend rather than restrict access to records by the public. Bartels v. Roussel, 303 So.2d 833 (La.App. 1st Cir. 1974).

This office is of the opinion that while a person is enrolled in the Pre-Trial Intervention Program, the records cannot be disclosed under La. R.S. 44:3(A)(1) since there is criminal litigation which can be "reasonably anticipated" should the person subsequently drop out of the program and face criminal prosecution. Therefore, those records cannot be disclosed and made available to the public until after final disposition of the case.

If the person successfully completes the program, as provided by the program, the District Attorney will decline to prosecute. Therefore, at this point the pending litigation is "otherwise settled" and the records can now be made available to the public. The only exception being if the person successfully expunges his criminal records as allowed in La. R.S. 44:9, in which case the records are no longer public records.

In conclusion, while a person is enrolled in the program, there is a reasonable anticipation of possible litigation and therefore, the District Attorney must keep those records confidential under the Louisiana Public Records Law. However, once the person completes the program and his charges have been "dead-filed", the District Attorney must now make those records public absent a successful order of expungement.

I hope that this opinion sufficiently answers your question. If you have any further questions, or if we can provide additional information, please do not hesitate to contact us.

With kind regards, I am

Sincerely,

William J. Guste, Jr. Attorney General

By: Kathleen E. Petersen Asst. Attorney General La.Atty. Gen. Op. No. 90-588, 1991 WL 575065
(La.A.G.)

Opinion No. 93-481

August 31, 1993

22 — District Prosecuting Attorneys 46-A — Fees Costs La. R.S. 42:1116

District Attorney's Office may charge fees for expenses and administrative costs in pretrial intervention program. It is permissible to remit a portion of fees to reimburse the judicial expense fund or criminal court fund.

Mr. Richard J. Ward, Jr. District Attorney Eighteenth Judicial District Post Office Box 765 Port Allen, Louisiana 70767

Dear Representative Willard:

Your request for an Attorney General's Opinion was forwarded to me for research and reply. As I understand it, you have asked the following question:

May district courts utilize the services of a private company to supervise and monitor criminal defendants before trial?

There are two instances in which the services of a private company would be retained in connection with pretrial defendants: 1) defendants released on bail and awaiting trial, and 2) defendants participating in pretrial intervention programs. The resolution of your question involves an examination of judicial authority in both of the above situations.

La. C.Cr.P. Art. 333 grants district courts the power to fix bail in all cases over which they have criminal jurisdiction. Furthermore, La. C.Cr.P. Art. 335 states, in pertinent part:

The court may impose any additional condition of release that is reasonably related to assuring the appearance of the defendant before the court.

The language of this provision is clear — it bestows upon district courts the broad authority to impose any condition of release which is "reasonably related" to securing the defendant's presence in court. Thus, pursuant to this provision, district courts may employ the services of private companies to monitor and supervise pretrial defendants who have been released on bail and are awaiting trial.

The second inquiry involves a different analysis. La. C.Cr.P. Art. 17 grants trial courts expansive authority to undertake all actions "necessary for the exercise of its jurisdiction and the enforcement of its lawful orders," as well as the power to "control the proceedings that justice is done." However, in a pretrial context, the domain of the court is limited to matters such as bail, attorney appointment, pretrial conferences and pretrial hearings — that is, concerns related to the actual trial. La. C.Cr.P. Art. 242 and Art. 578.1, among others, reflect that pretrial intervention programs fall under the capacity of the district attorney's office. This conclusion is consistent with the authority granted to district attorneys under La. C.Cr.P. Art. 61:

. . . the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.

Furthermore, previous opinions of this office have confirmed that pretrial intervention programs are entirely
controlled by the district attorneys in their respective judicial districts. See La. Atty. Gen. Op. No. 90-588; La. Atty. Gen. Op. No. 93-481; and La. Atty. Gen. Op. No. 95-318. Thus, district courts do not have the authority to mandate how, and by whom, pretrial intervention programs are administered, and as long as the intervention program is approved by the district attorney, private companies may be utilized to provide services for pretrial defendants.

Therefore, it is the opinion of the Attorney General that, pursuant to La. C.Cr.P. Art. 335, district courts may employ the services of private companies to monitor and supervise pretrial defendants who have been released on bail and are awaiting trial. Furthermore, although the services of private companies may be utilized in pretrial intervention programs, state courts do not have the authority to choose how and by whom such programs are administered. Instead, these programs are the domain of the district attorney in charge of prosecuting the criminal defendant.

I hope that this opinion has adequately addressed your question. If this office may be of further assistance, please do not hesitate to contact us. With warmest regards, I remain

Sincerely,

RICHARD P. IEYOUB Attorney General

BY: _______________________________________________ ELLISON C. TRAVIS Assistant Attorney General

Opinion No. 90-588

March 13, 1991

DISTRICT PROSECUTING ATTORNEYS .22 PUBLIC RECORDS ................ 90-C CRIMINAL LAW (crimes offenses) .16

A District Attorney must keep confidential the records of a person enrolled in his pre-trial intervention program. However, once a person completes the program, those records become public records absent a successful order of expungement.

Honorable Duncan S. Kemp, III District Attorney P.O. Drawer 639 Amite, Louisiana 70422-0639

Dear Mr. May:

This office is in receipt of your opinion request of recent date wherein you ask whether an elected police juror may also serve as either the office administrator or the director of the pre-trial intervention program of the district attorney's office.

The provisions of the Louisiana Dual Officeholding and Dual Employment Laws, LSA-R.S. 42:61, et seq., governs our response. Therein, note that an individual serving as police juror holds local elective office within a political subdivision of the state. See LSA-R.S. 42:62(9). Employment with the district attorney's office constitutes employment in a separate political subdivision of the state. LSA-R.S. 42:62(9).

The prohibition of the Dual Officeholding and Dual Employment Law which might be applicable is found in LSA-R.S.42:63(D), providing:

D. No person holding an elective office in a political subdivision of this state shall at the same time hold another elective office or full-time appointive office in the government of this state or in the government of a political subdivision thereof. No such person shall hold at the same time employment in the government of this state, or in the same political subdivision in which he holds an elective office. In addition no sheriff, assessor, or clerk of court shall hold any office or employment under a parish governing authority or school board, nor shall any member of any parish governing authority or school board hold any office or employment with any sheriff, assessor, or clerk of court. (Emphasis added).

The law permits an individual to hold local elective office and employment in a separate political subdivision. For this reason, we conclude a police juror may additionally hold employment with the district attorney's office as either the office administrator or the director of the pre-trial intervention program of the district attorney's office.

Very truly yours,

Richard P. Ieyoub Attorney General

Kerry L. Kilpatrick Assistant Attorney General La.Atty. Gen. Op. No. 95-318, 1995 WL 508198
(La.A.G.)

Dear Mr. Ward:

Your request for an opinion from this office posed two questions:

1. Is it permissible for a district attorney's office to charge a fee to participants in a pretrial intervention program?

2. May a portion of this fee be remitted to the judicial expense fund or criminal court fund of the parish?

With regard to the first question, it is permissible for a district attorney's office to charge a fee to participants in a pretrial intervention program. However, the fee charged should be for expenses incurred for participation in the program and for administrative costs. Any additional fees charged would be payments for the dismissal of prosecutions. This would be a violation of La. R.S. 42:1116, which states:

No public servant shall use the authority of his office or position, directly or indirectly, in a manner intended to compel or coerce any person or other public servant to provide himself, any other public servant, or other person with anything of economic value. This section shall not be construed to limit that authority authorized by law, statute, ordinance, or legislative rule in carrying out official duties.

In response to the second question, it is permissible to remit a portion of any fees charged in a pre-trial intervention program to the judicial expense fund or the criminal court fund. However, the fees should be remitted only to reimburse the criminal court fund or judicial expense fund for any expenditures made to establish or finance the pretrial intervention program. In summary, it is the opinion of this office that it is permissible for a district attorney's office to charge fees for expenses and administrative costs incurred in a pretrial intervention program as long as the fees cover only operational costs. It is also permissible to remit a portion of the fees charged to the judicial expense or criminal court fund to reimburse that fund for expenditures made to finance the pretrial intervention program.

I hope the foregoing has adequately answered your questions. If our office can be of any further assistance, please do not hesitate to contact us.

Sincerely,

Richard P. Ieyoub Attorney General

By: Frederick A. Duhy, Jr. Assistant Attorney General La.Atty. Gen. Op. No. 93-481, 1993 WL 438522
(La.A.G.)

Opinion No. 95-318

August 15, 1995

78 OFFICERS — Dual Officeholding LSA-R.S. 42:62(9); LSA-R.S. 42:63(D)

We conclude a police juror may hold employment with the district attorney's office as either the office administrator or the director of the pre-trial intervention program of the district attorney's office.

Honorable Walter E. May, Jr. District Attorney 500 East Court Avenue Jonesboro, LA 71251