Can Louisville Metro withhold the list of applicants currently being considered for the position of LMPD's new chief?

Yes. The Kentucky Attorney General has affirmed public agency denial of open records requests for applicant lists under the privacy exception since the early days of the law.

Should Louisville withhold the list of applicants currently being considered for the position of LMPD's new chief?

No. Louisville may have a legal leg to stand on, but it's decision to subordinate the public's need, if not it's right, to know is a departure from its own past practice and fundamentally at odds with its much touted commitment to transparency.

The privacy exception to the open records law permits agencies to withhold "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=49156

It has been heavily litigated since the open records law's enactment. It has — more than most other exceptions — evolved.

In a 1992 case involving access to the highly personal client files of a psychologist who faced professIonal discipline, the Kentucky Supreme Court established a test for determining if the agency properly relied on the privacy exception to deny the public access to public records belonging to the public.

"Given the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context."

https://www.casemine.com/judgement/us/591487c7add7b049344e99a0/amp

In the 1992 case, the psychologist surrendered his license before discipline was imposed, and already disclosed records confirmed a thorough investigation by the Kentucky Board of Examiners of Pyschologists.

The Court found that the client files were properly withheld. The clients' privacy interests in the contents of their files outweighed the already vindicated public interest in disclosure of the files.

Although the Court ruled against public access, it established the important principle that not all invasions of privacy are "clearly unwarranted." Every case turns on its specifics facts.

This means, the Court of Appeals ruled in 2006, that there are no "bright-line rules permitting or exempting disclosure."

https://caselaw.findlaw.com/ky-court-of-appeals/1119502.html

In that 2006 opinion, the Court admonished the Kentucky Attorney General for applying bright line rules to requests for public employee performance evaluations, reminding the office about the "case-by-case analysis required by the Open Records Act."

At issue were the performance evaluations of a former Louisville Metro Parks employee and his supervisor. The Courier-Journal sought the evaluations in its investigation of the theft of a large number of shoes donated by area businesses for needy children. The employee diverted the shoes and sold them. He was fired and prosecuted. His supervisor was suspended and forced to resign. Louisville provided all records requested by the newspaper except for the performance evaluations.

Applying the Supreme Court test, the Court of Appeals ruled that the public's interest in disclosure outweighed the Metro Parks employees' privacy interest in their evaluations.

A few years later, the Attorney General departed from the old position that the names of applicants for public employment did not have to be disclosed. The dispute involved access to applicants for a vacant Bowling Green commissioner's seat.

https://ag.ky.gov/Priorities/Government-Transparency/orom/2011/11ORD046…

The old position was based on the view that the unsuccessful applicants' privacy interests "in avoiding disruption in their current employment and maintaining their reputations," if not hired, was superior to the public interest in the hiring process.

The Attorney General's decision requiring disclosure of the names of applicants for city commission turned on the facts of the appeal: the applicants' reduced expectation of privacy and the public's heightened interest in the selection process.

Nearly a decade later, Louisville Metro has reverted to a discredited legal interpretation, failed to consider the compelling public interest, and, perhaps most curiously, deviated from its own past practice of making the names of applicants for LMPD chief public.

Can Louisville Metro """withhold the

names of applicants currently being considered for the position of LMPD's new chief?

The open records law may provide cover for its decision to do so, but the "specific context" within which this issue arises —widespread mistrust of city leadership at the highest level and a professed commitment to transparency — strongly suggests that it should not.

Especially when it necessitates a conscious departure from past practice in an era when other cities are consciously making the names of applicants for police chief public.

The fact that it (arguably) can withhold applicant names does not mean that it should.