Top Ten open government stories of 2023 (part two)

This is the second part of a two-part story. The first set of five stories is here.

6. The 490 Project settles a first-of-its-kind open records lawsuit against Louisville Metro Police Department

On April 19, a Louisville-based community organization focusing on police accountability – The 490 Project – announced the settlement of its open records lawsuit against Louisville Metro Police Department, a persistent open records offender. LMPD agreed to release 400 citizen complaints against LMPD officers – with limited redactions – within 14 days and to pay $15,256 in attorneys’ fees and costs to The 490 Project.

In October 2022, The 490 Project filed suit against LMPD for refusing to comply with its statutory duty to take final action on open records requests within five business days – either by disclosing nonexempt public records or identifying the legal basis for nondisclosure.

“But,” the Kentucky Open Government Coalition emphasized in an op-ed published shortly after the lawsuit was filed, “in a first-of-its-kind claim, the group alleged that LMPD subverted the intent of the open records law through the premature and illegal destruction of public records – in this case, complaints leveled against police officer that LMPD designates ‘informal’ – in contravention of state law governing the minimum retention of those records.

“This critical public records abuse has largely evaded public notice but has long been employed by public agencies as a means of evading public accountability.”

“There's nothing sexy or cool about record retention policies,” said 490 Project organizer Cara Tobe about the group’s lawsuit, “but [they are] really important.”

The settlement was “a clear win for judicial economy[,] a clear win for taxpayers[,] and a clear and long overdue win for police accountability.”

Sadly, LMPD and Louisville Metro continue to engage in illegal conduct that thwarts access to public records to the present.

7. Oldham County Circuit Court instructs the Attorney General on the importance of legal precedent

On June 13, the Oldham County Circuit Court handed Attorney General Daniel Cameron a major defeat, reversing Cameron’s open meetings decision, 22-OMD-187, and ruling that the Oldham County Ethics Commission violated the open meetings law when it conducted a closed session that did not conform to statutory  requirements designed to “maximize notice of public meetings and actions.”

In J. Albert Harrison v. Oldham County Ethics Commission, Judge Jerry Crosby II reversed a September 2022 Cameron open meetings decision in which the the Attorney General determined that although the county Ethics Commission failed to comply with statutory requirements for conducting a closed session, the Commission’s noncompliance did not violate the open meetings law.

While the court’s insistence that “an administrative agency [like the Attorney General acting under authority of KRS 61.880(2)] either must conform with its own precedents or explain its departure from them” is the single most important takeaway in the Harrison opinion, the court also reaffirmed longstanding interpretation of  the open meetings law.

In reversing the Attorney General’s decision, and voiding the action illegally taken by the Commission in closed session, Judge Crosby focused on the Attorney General’s unexplained departure from an interpretation of KRS 61.815(1) and (2) that “goes back forty plus years with no overt repudiation by the Courts or the legislature as to a different interpretation.”

Cameron’s interpretation of the statute, Judge Crosby determined, “would eviscerate most of the Open Meetings Act’s operative provisions.”

In an op-ed published shortly after the Oldham Circuit Court’s opinion was issued, the Kentucky Open Government Coalition urged Cameron’s successor to “resist the temptation to elevate his policy preference over precedent.”

“Perhaps,” we noted, “Cameron himself will learn about the importance of precedent from the defeat recently handed to him by the Oldham Circuit Count. We have not fought the battle to shine a light on state and local government for nearly 50 years only to have Cameron, or his successor, arbitrarily shut it off.”

The case has been appealed to the Kentucky Court of Appeals.

8. Louisville Metro Police Department’s Records Management Audit reveals poor oversight and faulty records management but no illegal acts

Following a series of delays, Louisville Metro released the Records Management Audit – ordered by the Louisville Metro Council on the heels of the lawsuit filed by a nonprofit police accountability group, The 490 Project – in late September.

The unprecedented records management audit of Louisville Metro Police Department – conducted over several months by Louisville Metro’s Office of Internal Audit – exposed serious deficiencies in the January 1, 2018 through December 19, 2022 review period, including:

• failure to assign responsibility for oversight of record retention at LMPD to a specific individual or unit;
• failure to conduct annual reviews of LMPD’s records retention schedule (the Kentucky Libraries, Archives, and Records Commission approved requirements for retention and destruction of public records promulgated into state regulation); and
• lack of oversight for record retention across all of Louisville Metro Government.

As a consequence, public records were misdirected, misfiled, or missing altogether. The auditors found no illegalities – a questionable finding in light of evidence of unauthorized records concealment and premature destruction of public records.

Despite the seriousness of these findings, the OIA issued a relatively mild “internal control assessment rating of ‘Needs Improvement,’ indicating that the identified issues impact on operations is likely contained.” The rating was based on a “thorough understanding of the process(es) for LMPD’s records retention and management ... obtained through interviews with key personnel and examination of supporting documentation.”

In an op-ed issued not long after the audit was released, the Kentucky Open Government Coalition questioned the existence of concrete steps for “pursuing corrective action on each of OIA’s nine recommendations – most with a target implementation date of August 1, 2024.” We reminded Louisville Metro and LMPD that “The 490 Project (and the Kentucky Open Government Coalition) will be tracking their progress.”

“We cannot permit the corrective actions to which LMPD and Louisville Metro have committed to languish in indifference and obscurity.

“Nor can we permit The 490 Project’s victory in its open records/records management litigation against LMPD – and the Metro Council’s commitment to securing reform in LMPD’s open records/records management programs – to be forgotten.

“The real work now begins.”

9. The courts vindicate fundamental open records principles in additional legal actions

Two other open records cases are worthy of note in the Top Ten Open Government Stories of 2023.

In an opinion issued on August 22, the Jefferson Circuit Court dismissed Louisville Metro’s open records lawsuit against open records requester Lawrence Trageser.

In Louisville County Metro Government v Lawrence Trageser, Judge Eric Haner determined:

“Louisville Metro’s position [that the Attorney General is required to ‘moot’ an appeal if all records are provided after the appeal is filed] is unreasonable because it would allow any public agency to extend the five-day requirement under KRS 61.880(1) unilaterally by forcing a requester to file a complaint with the Attorney General before responding to his request for records.”

Although the court correctly affirmed Trageser’s position that his appeal was not “moot,” and that the Attorney General properly found that Louisville violated the open records law, it rejected Trageser’s request for penalties and costs, including reasonable attorney’s fees.

In a blog post, the Kentucky Open Government Coalition questioned this decision:
“The court’s mixed messages may disincentivize the cynical Louisville Metro (read “public agencies,” in general) practice of ignoring statutory deadlines for responding to open records request until an open records appeal is filed. But it simultaneously incentivizes the same cynical practice by imposing a financial burden on Trageser to defend the lawsuit initiated against him – which he won!

“It’s no big deal for Louisville Metro to squander taxpayer dollars to sue private citizens to defend its ‘right’ to violate the open records law. Louisville Metro has deep financial pockets. But for Trageser – who prevailed on all but the issue of penalties, costs, and attorney’s fees – the victory came at a cost he should not be forced to bear.”

Neither Louisville Metro nor Trageser appealed Judge Haner’s ruling.

In an unrelated — but equally preposterous — case, the Kentucky State University Foundation continued to squander public resources in defending its claim that its records are not subject to public scrutiny. It did so by appealing a Franklin Circuit Court opinion that reached the opposite conclusion to the Kentucky Court of Appeals.

A 1992 Kentucky Supreme Court opinion declaring that KSU’s Foundation is a public agency for open records purposes, a 2021 Attorney General’s open records decision affirming the 1992 opinion, and the challenged 2022 Franklin Circuit Court opinion – reaffirming both – repudiate the KSU Foundation’s position.

In a blog posted soon after the KSU Foundation appealed the Kentucky Attorney General’s decision to the Franklin Circuit Court, the Kentucky Open Government Coalition commented:

“Despite recent revelations concerning financial mismanagement at KSU, the admitted role KSU officials played in approving Foundation disbursements, and singularly damning optics, the Foundation will expend public funds to evade accountability.

“As KSU seeks a taxpayer bailout to rescue it from its current financial crisis, the tenuous claims advanced by its Foundation in support of secrecy must yield to the strongly substantiated public interest in its Foundation records requested by the State Journal.

“It was, after all, secrecy that got Kentucky State University in trouble to begin with.”

The Court of Appeals case has been briefed and oral argument is scheduled in early 2024.

10. The departing Attorney General leaves a dark open government legacy

Recently surfaced, and as yet unrefuted, claims that departing Attorney General Daniel Cameron abdicated his statutory duty to distribute open records and open meetings materials to some designated public officials – for mandatory training purposes – may represent the final affront to open government Cameron perpetrated in his four year term of office.

But in a May, 2023, post examining what fate might await Kentucky’s open government laws under a Cameron gubernatorial administration, the Coalition enumerated his chief offenses.

“Whether it was outrages to open government committed in the name of ‘strict’ statutory construction, or reliance on aberrant legal authority, Daniel Cameron is to thank for, among other things:

• vastly expanding government secrecy in conducting the public’s business by declaring that public officials/employees’ communications about the public’s business on their personal devices and accounts are not public records;
• perpetuating  law enforcement agencies’ erroneous belief that all records in an open criminal investigation are excluded from public inspection; and
• eviscerating open meetings laws by declaring that the requirements for conducting closed sessions during public meetings are mostly voluntary and that a quorum of the members of a public agency does not violate the open meetings law when they discuss public business by email.

“It has been a slow and painful ‘near-death by a thousand cuts’ in Cameron’s open records and meetings dispute 'resolution' – resolution that for decades proceeded from clear statements of legislative policy and judicial interpretation favoring public access." Under Cameron, dispute resolution was often driven by personal preference rather than governing legal policy and precedent.

Kentucky's open government laws may recover, but only through reasoned enforcement of longstanding interpretation, continued judicial review consistent with that interpretation, and a much-needed legislative "hands-off" approach. When that "hands-off" legislative approach is ignored – as it inevitably will be by lawmakers who cannot resist the temptation to leave their anti-open government mark – the laws' salvation lies in united and vociferous bipartisan opposition to any proposal to amend the existing open records or open meetings laws that divests Kentuckians of their right to be informed what their government is doing.