A ruling of a divided panel of the Kentucky Court of Appeals — issued on February 18 — has opened the door for The Courier Journal to pursue a Jefferson Circuit Court lawsuit against the Louisville Metro Police Department for public records related to the investigation of the Explorer Program.
The lawsuit asks the court to enforce a 2019 open records decision issued by former Kentucky Attorney General Andy Beshear. In 19-ORD-198, Beshear determined that the department violated KRS 61.880(1) in the handling of The Courier’s request for records relating to the LMPD Explorer Program.
http://opinions.kycourts.net/COA/2021-CA-000007.PDF
The Attorney General found that LMPD: (1) failed to search for responsive records; (2) failed to cite a statutory basis for withholding the records but partially corrected the error on appeal; (3) denied the request based on the initial presumption of non-possession of the responsive records where the LMPD continued to have access to all task force records; and (4) failed to meet its burden of proof in withholding the responsive investigative record and a memorandum of understanding with the FBI.
https://ag.ky.gov/Resources/orom/2019/19-ORD-198.doc
Courier Journal reporter Andy Wolfson writes:
“Three former officers in the program for teens interested in law enforcement have been convicted of sexual misconduct and Louisville Metro last November paid $3.65 million to seven former scouts who say they were sexually abused.
“[Mayor Greg] Fischer disbanded the program after the first suit was filed five years ago.
“The attorney general’s office in 2019 ruled LMPD had improperly denied The Courier Journal’s request for records, but the city appealed.
“Then, without explanation, it voluntarily dropped its case. The news company's lawyers said Jefferson Circuit Judge Audra Eckerle should have continued to supervise the case, to enforce the attorney general’s ruling, but she declined and refused to award attorney’s fees, saying that The Courier Journal hadn’t prevailed.
“Ruling 2-1, the Court of Appeals affirmed her decision. But in an opinion written by Judge Pamela Goodwine and joined by Larry Thompson, it said The Courier Journal can now pursue another suit it filed in Judge Mitch Perry’s court to enforce the ruling.
“The suit had been on hold. A hearing is set for Monday.”
It is Judge Kelly Thompson’s 30 page dissent, Wolfson notes, that deserves attention. Thompson focuses on a deeply disturbing trend in the law — agency action intended “to willfully evade and subvert Kentucky’s Open Records Act by lying about the unavailability of records, actively concealing and removing records and [pursuing] meritless appeals to the circuit court in an attempt to further delay required production of these records.”
The Courier characterizes this kind of agency conduct as “reprehensible tactical gamesmanship,” likening it to the conduct of the Cabinet for Health and Family Services in the 2015 opinion pitting The Courier Journal and The Herald Leader against the cabinet. In that case, “the circuit court found ‘the Cabinet acted with conscious disregard for the Plaintiffs’ rights, and withheld voluminous records without any plausible justification.’ It expressed its exasperation at the Cabinet’s continuing conduct ‘resist[ing] its most basic obligations under the Open Records Act.’”
https://caselaw.findlaw.com/ky-court-of-appeals/1726554.html
Thompson agrees, reasoning:
“If the Courier-Journal’s allegations before us involving Louisville
Metro and the LMPD are true, this is an even more egregious situation than that involving the Cabinet, because not only did the LMPD refuse to disclose the relevant records, but it systematically attempted to remove them and place them out of reach of the Open Records Act. As with the Cabinet, the record suggests a ‘culture of secrecy’ within Louisville Metro and the LMPD with them treating the Open Records Act as something to be ‘gotten around,’ and flagrantly disregarded when inconvenient. The allegations speak to a ‘systematic and categorical disregard for the rule of law’ by Louisville Metro.”
In conclusion, Judge Thompson opined:
“Based on the Courier-Journal’s allegations, it appears that every legal maneuver has been used by Louisville Metro to delay and avoid complying with its responsibilities and that further responsive records are available to be produced, either from their location on LMPD servers or from their location within the FBI which, as found by the OAG, the LMPD can properly access and disseminate.
“This is a case where court oversight is desperately needed to ensure appropriate compliance and to mediate between the parties as to what needs to be produced and what does not.”
Out of defeat The Courier has seized the opportunity for long delayed but final victory. Courier Journal attorney Jon Fleischaker confirms that the Court of Appeals opinion “frees the media publication to pursue another suit that had been on hold — and to recover hundreds of thousands of dollars more in attorney fees and penalties.”
Most importantly, it will finally dislodge public records that “could reveal the role of supervisors in covering up the scandal and shed light on when Mayor Greg Fischer first knew about it.”
And this is the ultimate victory for open government.
