The Courier Journal has again taken Louisville Metro Police Department to court for open records noncompliance.
In May, the newspaper sued LMPD for the immediate release of its Public Integrity Unit's file into the March 13 fatal police shooting of Breonna Taylor.
https://www.courier-journal.com/story/news/2020/05/27/breonna-taylor-sh…
Last month, Jefferson Circuit Court Judge Barry Willett affirmed LMPD's denial of The Courier's request, acknowledging that it was a "close case." The Courier has appealed the circuit court ruling to the Kentucky Court of Appeals.
https://www.facebook.com/419650175248377/posts/767440590469332/?extid=0…
The Courier reported today that it has initiated a second suit against LMPD for failing to respond to three subsequent requests — directly or indirectly relating to the Breonna Taylor shooting — within the statutorily mandated ten days (extended by SB 150 from three business days during the state of emergency).
The Courier:
"filed a records request July 14, seeking all correspondence concerning Place-Based Investigations Squad officers connected to the work on Elliott Avenue. That request remains unfulfilled, and the records custodian has not acknowledged it in nearly two months.
"Additionally, The Courier Journal has filed two other requests relating to the protests in late May and early June: one for police staffing and one for documents relating to instances of property damage.
"Both requests remain unfulfilled, and the department has not acknowledged them for nearly a month."
The Courier argues that "LMPD has an obligation to devote the requisite amount of staff to process open records requests. The law does not permit LMPD to delay responding to requests for months simply because it would prefer to devote resources to other tasks."
Attorneys representing LMPD are well aware that neither the pandemic nor recent protests relieve the department of its statutory duty to decide within the current ten day deadline "whether to comply with the request and notify in writing the person making the request of its decision."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065
Nevertheless, they need to be reminded that:
"the language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. [A] limited and perfunctory response to [a records] request [does not] even remotely comply with the requirements of the Act — much less amount to substantial compliance."
https://www.leagle.com/decision/19961782926sw2d85611773
They will be hard pressed to offer any defense for LMPD's failure to discharge it's first and foremost duty under the law.
While it is again unfortunate that The Courier Journal must go to the time and expense to enforce the basic requirements of the law, there is a value here.
Open records appeals involving public agency failure to respond to records requests that are presented to the attorney general's office are "mooted" when the agency belatedly releases the requested records. Based on the post-appeal disclosure of the records, the attorney general issues no open records decision and the agency suffers no consequences.
https://casetext.com/regulation/kentucky-administrative-regulations/tit…
This has the effect of encouraging agencies to hedge their bets that the requester will not appeal. If the requested files an appeal, the agencies produce the records and, as noted, escape any consequences.
To promote the purpose for which the open records law was enacted, let's hope the Jefferson Circuit Court gives LMPD more than a slap on the wrist for violating KRS 61.880(1) — violations that are indicative of a persistent pattern of open records noncompliance.
