A bill on Governor Jeff Landry's desk would shield anyone who doesn't live in Louisiana from accessing public records in the governor's office.
Governor Jeff Landry is expected to sign House Bill 767 into law, but according to one legal analyst, that law is likely unconstitutional.
"It would present significant issues under the privileges and immunities clause of the United States Constitution," Loyola University law professor Dane Ciolino said.
According to Ciolino, that clause--Article IV, Section 2 of the Constitution--generally prohibits states from making distinctions between state residents and out-of-state residents in regard to "fundamental activities." In 2022, a federal court used the same clause to strike down a New Orleans ordinance that required short-term rental license holders to be Louisiana residents.
"A very good argument can be made that the records of the government is something that is fundamental and that ALL persons should have access whether they are residents of the state or not," Ciolino said. "If it does discriminate as to a fundamental activity, the state would have to show that there's some substantial reason for treating out of state residents differently and that the new law somehow bears a substantial relationship to that reason for discrimination."
Ciolino says a court likely won't accept lawmakers' claim that the governor's office is getting too many out-of-state records.
"If access to public records is a fundamental right under the privileges and immunities clause, I don't believe that that rationale is going to be sufficient to withstand scrutiny," Ciolino said.
According to Ciolino, Louisiana's laws have a habit of drawing constitutional challenges similar to the possible challenge facing HB 767.
"It would present very interesting questions," Ciolino said. "Unfortunately, we here in Louisiana are often at the forefront of constitutional law because our legislature pushes the envelope often when it comes to enacting new legislation, and I believe it's done that here."
