Yet another legal “black eye” for Louisville Metro as a second lawsuit is filed against it in one month

In December 2023, the Kentucky Attorney General issued yet another open records decision determining that Louisville Metro Police Department violated Kentucky’s open records law in failing to afford timely access to public records — five business days under state law.

The requester, Louisville Public Media’s Ryan Van Velzer, asked for video records related to the killing of an unarmed man in a parking lot near Churchill Downs. Despite the five working statutory deadline in the law, Louisville responded by advising Van Velzer that production of the records would take as long as six months. The reason? A growing backlog of requests and inadequate staffing.

The Attorney General rejected these tired excuses in the December 2023 open records decision:

“Although numerous unrelated simultaneous requests to inspect records may place a strain on a public agency, the [Attorney General’s] Office has previously noted that ‘[n]either the volume of unrelated requests nor staffing issues justifies a delayed response.”

On Monday, LPM became the second media organization in 2024 to file suit in Jefferson Circuit Court to compel city police to produce requested public records. Earlier this month, on January 8, The Courier Journal filed an action in Jefferson Circuit Court for a similar open records violation.

Van Velzer writes:

“Louisville Metro officials said they learned last week the Jefferson County Attorney’s Office did not notify the city’s records department about the attorney general’s decision.

“’Once we learned of the decision we began working expeditiously to address the request,’ Kevin Trager, a spokesperson for Mayor Craig Greenberg, said in an emailed statement.

“Trager said the city will release the records as soon as they complete a review for any material that could warrant an invasion of privacy. He did not include an estimate of when that would be.”

Let me get this straight. 

Louisville originally told Van Velzer his October 2023 request could not be fulfilled for six months — meaning sometime in April. Van Velzer appealed to the OAG.

In December, the OAG determined that Louisville violated the open records law “when it delayed access to the requested records for six months without proper justification.” 

Van Velzer writes in yesterday’s update:

“The Jefferson County Attorney’s office said in a statement it ‘inadvertently failed to send the decision to the administration.’

‘We take full responsibility for this unfortunate error, which has delayed the city’s production of the responsive records,’ according to the statement.”

Once Louisville “learned of the decision we began working expeditiously to address the request,” assuring Louisville Public Media that it would “release the records as soon as they complete a review.”

Once again, only because LPM filed suit did Louisville fly into action. 

Why not “work expeditiously” to address any open records request immediately upon receipt?!? Why force Van Velzer to appeal, the Attorney General to issue his decision, and the County Attorney to belatedly send the decision to the administration to discharge the duties statutorily assigned to  it within the legally mandated five days. Why, in other words, send new requests to the end of an arbitrary  and illegal line, ignoring them until confronted with legal action. By rough calculation, Louisville sat on its hands for three-plus months while Louisville Public Media was forced to exhaust its administrative remedies. 

Then, miraculously, the anticipated six months deadline for production decreased by half, and the records became available for nearly immediate release. 

This “squeaky wheel” way of doing business is the definition of deliberate deception. 

Perhaps it is why “LPM President Stephen George said he intends to hold the city to account.

“George said the station has decided to file suit after exhausting all other options. Greenberg’s administration has obfuscated and delayed in delivering open records while allowing the backlog to grow.”

In response to an LPM News’ request for an update on the number of unfulfilled records requests, Greenberg’s spokesman offered the same lame excuses: we continue to work through the backlog, we continue to “see a sharp increase in the number of requests, specifically for LMPD video,” we are still in the process of hiring five new full time employees to work on records requests, and have filled one position.

The number of adverse rulings against Louisville Metro in 2023 — based on simply ignoring the open records statutory deadline — is staggering:

Add to that two adverse rulings in the first three weeks of 2024:

First Amendment attorney Michael Abate represents both LPM and The Courier Journal in their respective lawsuits. “Only intervention by this court, ” Abate asserted in the first complaint, “can compel [Louisville Metro government] to do what the General Assembly has commanded.”

Earlier this month, the Kentucky Open Government Coalition wrote:

“Neither the media, nor ‘[t]he public should have to litigate access to records that should be disclosed,’ David Loy, legal director of California’s First Amendment Coalition, recently said. 

“‘The point of freedom of information laws is to be transparent to the people. They should not turn on the gamesmanship of who wins a particular lawsuit or who has the resources to litigate that lawsuit.’

“The Courier Journal is on familiar ground in litigating open records cases. Louisville Metro has no leg to stand on — it’s position is legally indefensible. It is unlikely the recently filed case will be litigated to a conclusion. 

“Metro’s Records Compliance Office will presumably raise heaven and earth to produce these disputed records. But what about the ‘next request’ or the request that follows that. If The Courier Journal’s financial resources are as strained as most newspapers, it can ill-afford this and future litigation with Metro to ensure basic compliance with the open records law.

“But imagine the financial strain on an individual member of the public. Louisville Metro cynically relies on this reality to circumvent the open records law and evade public scrutiny. It refuses to invest its efforts (much less it’s financial resources) in righting its foundering open records ship.

“The mayor’s actions (or lack thereof) continue to speak louder than his words.”

And for those who lack their own resources to bring Louisville Metro to justice in the courts, take a number and go to the end of the line. It’s going to be long, long, long wait.

Avatar for Amye Bensenhaver

Amye Bensenhaver is a retired assistant attorney general who, for twenty-five years, specialized in Kentucky’s open records and meetings laws. She is the co-founder of the Kentucky Open Government Coalition.