Craig Greenberg and Bill Dieruf (campaign photos)

Open government and the Louisville mayoral candidates

Amye Bensenhaver
Amye Bensenhaver

Once again, Joe Gerth’s column — “Here's Craig Greenberg's advantage in Louisville's mayoral race” — provides fertile ground for further analysis, suggesting another factor that should be considered in the upcoming mayoral race: the candidates’ position on open government.

And here, as in Gerth’s column, the advantage goes to Greenberg — not for what we know, but for what we don’t know. Maybe.

Based on the handling of a couple of open records requests for City of Jeffersontown records, it’s safe to say that Greenberg’s opponent — current Jeffersontown Mayor Bill Dieruf — is not a fan.

Perhaps these disputes are not representative of Jeffersontown — or Dieruf’s — position on open records over his ten year administration, but they reflect an almost laughable ignorance of fundamental statutory requirements.

The Construction Monitor case

In 2018, ConstructionMonitor.com requested “a report of issued building permit information for Residential & Commercial Properties” for a two month period.

As permitted by law, Jeffersontown responded by requesting a “certified statement describing the commercial purpose for which the requested information will be used.”

The city should have stopped there.

Instead, Jeffersontown required “prepayment of a minimum fee of $5,000.00, prior to determining whether we even have responsive records” and an “acknowledgement of our right to audit your books and records to insure that the public’s records are used for lawful purposes.”

In other words, Jeffersontown demanded a prepaid minimum fee of $5000 before the city would conduct a search for responsive records and conditioned access to city records on an agreement to permit the city to audit the requester’s books and records “to insure that the public’s records are used for lawful purposes.”

The city “justified” its position based on the “significant cost to the taxpayers to perform governmental services which lead to the generation of records, in terms of fixed overhead, personnel costs, retirement costs, and recurring expenses to create, house and retrieve those records. The records belong, in the end, to Jeffersontown residents and businesses, and they deserve to achieve a return on their investment.”

Ignoring the statutory factors for calculating reasonable fees for a commercial requester, Jeffersontown demanded that it be “paid a fair market price for our information.”

Not surprisingly, then Attorney General Andy Beshear found that — per KRS 61.874(4) — “the city lawfully required a certification as to Construction Monitor’s commercial purpose, but attempted to charge improper fees and impose unauthorized conditions on access to public records.”

The Attorney General found “no legal basis for the city’s requirement that Construction Monitor allow the city to audit its financial records” and no “statutory justification for the city’s $5,000.00 prepaid ‘minimum fee.’”

In an open records decision that is a model of restraint, the Attorney General concluded: “For the city to charge an up-front minimum of $5,000.00, ‘prior to determining whether we even have responsive records,’ is arbitrary and unsupported by statute.”

The handicapped parking case

A year later, Jeffersontown again qualified itself for the Open Government Hall of Shame.

Within a few days of submission of an open records request for “all information on Handycap [sic] Parking, ie: zoneing [sic], complaints, code, inforcement [sic], ciatitions [sic], and all other related records,” the requester arrived at Jeffersontown City Hall to retrieve his records. An angry confrontation with the city attorney ensued.

According to observers, the city attorney advised the requester that the city “had not fulfilled his request because it needed more information to determine what records he wanted. The requester immediately became angry and abusive, saying his purpose was to ‘cause all kind of hell for Jtown’ or words to that effect.

“According to the requester, the city attorney stated: ‘[A]ll you want to do is cause trouble for us. Why should we help you. We’re not going to give you anything.’”

The city thereafter banned the requester from city hall and, on appeal, advised — despite its claim that it “needed more information to determine what records he wanted” — the requester would “get his documents as soon as we can pull them together.” There was no indication in the record on appeal that the requester ever received the public records.

The Attorney General was less restrained in this case, declaring that Jeffersontown “violated the Open Records Act by responding to the request in an untimely and insufficient manner and by denying the requester the right to inspect records on city premises; and subverted the intent of the Act by excessive delay.

“We recognize a measure of fault on both the agency’s and the requester’s part in this appeal. But upon submission of the request, the burden shifted to Jeffersontown to discharge its statutory obligations. However obstreperous the requester’s conduct — and accounts differ — it was incumbent on the city to exercise patience and long-suffering in making public records available for public inspection.”

In each of these cases, the City of Jeffersontown prioritized its demands over the requirements of the open records law, adapting its legal obligations to the perceived improper purposes of the requesters — a dangerous perspective, indeed.

As chief executive and administrative officer of the city, responsible for overseeing the management of the city's daily affairs, Dieruf bears responsibility for these violations of state law.

Of course, what we don’t know about Craig Greenberg may also hurt us. Like a Matt Bevin or, even more apropos, a Greg Fischer, he is a businessman who — coming from the private sector — may have little to no knowledge of Kentucky’s open government laws, and even less appreciation for their value.

We need to hear from both candidates on government transparency

Both candidates will have a chance to explain their positions on open government — in meetings with the Courier Journal’s editorial board or perhaps sooner.

Both owe Louisvillians an honest assessment of where they stand on the issue.

Both are likely to give lip service to the principles of open government.

Dieruf’s open government record as Jeffersontown mayor may be difficult to defend. But no record may be equally problematic for Greenberg – especially given his professional similarities to Louisville’s current mayor, whose administration has a catalogue of open records and open meetings violations as long as your arm.

Now is the time to draw the mayoral candidates out on open government issues. If nothing else, their words may be used against them in the future court of public opinion.

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Commentary

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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