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Louisville’s non-commitment to open records

Thousands of open-records requests are languishing in Louisville – and Mayor Greenberg hasn’t been effective in fixing the problem.

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Louisville Public Media’s Ryan Van Velzer recently reported on “affronts to transparency” that persist in Louisville Metro Government. Despite Mayor Craig Greenberg’s campaign pledge to address the city’s open record request backlog, that backlog continues to spawn mistrust – not to mention lawsuits – and to cast a long shadow over the Greenburg administration.

Indeed, Louisville’s open records backlog has significantly increased during Greenberg’s first year in office, Van Velzer reports.

In fact, Louisville’s wholesale noncompliance with the open records law has prompted yet another open records lawsuit. On January 8, The Courier Journal announced that its attorneys filed suit against Louisville Metro after LMPD failed to respond to a four-month-old request for search warrant applications cited in the critical March 2023 U.S. Department of Justice report. “There is no basis to withhold those records from the public,” the newspaper argues, “which is perhaps why Louisville Metro has not even tried.”

“Open records backlogs have more than doubled”

On a tip, Van Velzer went in search of public records documenting a murder that occurred in a parking lot near Churchill Downs by someone wielding an AR-15. First, he requested the police case file. He received the file within a week. 

Later, Van Velzer requested surveillance video from the scene of the murder – also in the hands of the police. The city advised him “it would take up to six months to get the footage.”

Van Velzer reports: 

“The footage, like the police case file, is a public record. And in Kentucky, government agencies are required by state law to provide access to public records upon request [and within five working days]. But in Louisville, access to public records is plagued with delays, deficiencies, and mismanagement.

“Mayor Craig Greenberg said he was going to restructure the city’s open records department and improve transparency back in May. But it hasn’t happened yet.”

Van Velzer is referring to the plan to reform the Louisville Department of Records Compliance which Greenberg announced in May. The backlog then stood at 955 backlogged open records requests. “By early December,” Van Velzer writes, “the backlog had ballooned to more than 2,000 requests for records and nearly 1,400 requests for video records, according to records obtained by Louisville Public Media through an open records request.”

In an interview, Greenberg explained that “the number of open records requests to our city government has exploded over the past couple of years,” recommitting to his pledge to “hire five additional people to work in a new records department that oversees all requests.” The positions were authorized as of October 1. To date, only one of the five positions has been filled. 

As for Louisville’s remaining commitments to improving open records/records management compliance — commitments it made in settlement of The 490 Project open records litigation and the resulting Records Management Audit — no progress has been announced.

Greenberg points to the labor intensive nature of responding to open records requests. Like many public officials, his defense of the city proceeds from the erroneous premise that public records are presumptively closed and must be withheld if withholding can be justified – even on the flimsiest of legal pretexts. He ignores the presumption favoring access to public records that is grounded in the statement of legislative policy codified in the open records law and recognized by the courts on multiple occasions.

“A very manual, time intensive process”

It is this erroneous presumption that largely accounts for the “tedious process that takes significantly longer than what’s mandated in state law” about which Greenberg complains. Louisville wastes far too much of its limited resources on locating excuses to withhold public records rather than on facilitating “free and open examination of public records.”

These delays, expressly addressed in the open records law, are not a public agency license to “routinely blow through the timeframes in the open records law.” They are appealable to the Kentucky Attorney General or the courts and are examined on a case-by-case basis focusing on the reasonableness of the delay, based on challenges associated with retrieval, redaction, and reproduction of the public records. Neither the Attorney General nor the courts are predisposed to ignore statutory deadlines for production of public records – particularly where an agency routinely defaults to it own generous and self-serving but illegal deadlines.

The lack of “sufficient staff to respond timely to records requests” has nothing to do with legally justified delays beyond five business days. It has everything to do with the low priority assigned to open record requests, and Louisville’s refusal to invest much needed funding to fulfill a statutory mandate that it treats as a nuisance rather than a duty.

Addressing an equally noncompliant state agency in 2016, Louisville’s own Judge Irv Maze wrote for the Court of Appeals:

“The Open Records Act is neither an ideal nor a suggestion. It is the law. Public entities must permit inspection of public records as required or risk meaningful punishment for noncompliance. Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency, and secures the public trust.”

Judge Maze expressly rejected the noncompliant public agency’s “obvious and misguided belief that the Open Records Act is merely an ideal – a suggestion to be taken when it is convenient and flagrantly disregarded when it is not.”

A bandaid for a hemorrhage

In April, Greenberg “allocated $475,100 to create a new Department of Records Compliance, including six [later reduced to five] new positions to handle open records requests.” It was, and is, a paltry amount that exposed his lack of commitment to serious reform and, ultimately, the “value” he attaches to the public’s right to know.

Louisville’s effort to eliminate the backlog of open records requests must begin with professionalizing its Office of Records Compliance. Rather than assigning open records duties to a handful of poorly paid and poorly trained employees, the city must invest substantial financial resources to attract a workforce that is adequately staffed and trained. 

An expanded and well-trained staff of professional records officers – who are incentivized to undertake a long term career in ensuring (rather than impeding) public records access  and who are compensated accordingly – is a start. 

$475,100 is an insult to meaningful open records reform. Louisville will have no problem burning through its recently announced $42 million surplus. Surely, open records reform merits an investment greater than a half million dollars. 

If he builds it, they will come

In a decision issued in 2022, “No Friend to Open Government” Attorney General Daniel Cameron rejected the city’s claim that its open records resources are stretched thin and inadequate to meet the law’s requirements.

“The General Assembly has required all public agencies, including Metro and its subordinate departments, to comply with the Act in the short timeframes provided therein. And Metro must comply with that legislative command.”

Greenberg cannot hope to correct these problems by glibly shifting responsibility to the public to “become part of the solution.” On his shoulders rests the duty to build a professional Office of Records Compliance that is well-funded, well-trained, and steeped in a culture recognizing that “free and open examination of public records is in the public interest.”

If Greenberg builds it, that staff will come.

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Amye Bensenhaver

Amye is a retired assistant AG who specialized in open records laws. She is the co-founder of the Kentucky Open Government Coalition. (Read the rest of her bio on the Contributors page.)

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