A timely and mostly satisfying August 22 ruling from the Jefferson Circuit Court affirms an Attorney General's open records decision of great importance.
In Louisville County Metro Government v Lawrence Trageser, Judge Eric Haner declares:
"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."
In early December, 2022, Trageser submitted an open records request to Louisville Metro under the Kentucky’s Open Records Act, he asked for the personnel file of a former employee -- that's one personnel file.
After Louisville Metro failed to respond to his request within five business days, Trageser appealed to the Kentucky Attorney General, asserting that Louisville Metro’s failure to respond violated the Open Records Act.
Louisville Metro responded to Trageser’s appeal only after Trageser appealed. In late December, 2022, Louisville Metro advised the OAG -- not Trageser -- that it would provide some of the records requested by Trageser by the following day, but that due to the “volume of records under review,” it would provide the remaining records by January 13, 2022.
Here's a reminder: Trageser requested a single personnel file.
On January 13, 2023, Louisville Metro notified the OAG that it had provided all responsive records to Trageser -- albeit redacted records -- and asked the OAG to refuse to issue an open records decision in Trageser’s appeal because the matter was moot under a regulation, 40 KAR 1:030 § 6.
Three days later, Trageser notified the OAG that he objected to Louisville Metro’s "characterization of his appeal as moot because he had raised the issue of whether the initial delay in Louisville Metro’s response to his request for records violated the Open Records Act, not whether Louisville Metro had declined or refused to produce requested records on the basis of a valid exemption from disclosure."
Following some back and forth between Louisville Metro and the OAG, in which Louisville reasserted its claim that it considered Trageser’s appeal moot, the OAG issued 23-ORD-007.
To the office's credit, the OAG found that Louisville Metro had violated the Open Records Act by failing to respond to Trageser as required by KRS 61.880(1).
We applauded the OAG's decision.
LOUISVILLE METRO SUES TRAGESER
To our amazement, on February 15, 2023, Louisville Metro filed a lawsuit against Trageser in Jefferson Circuit Court for review of the Attorney General’s decision and for an order reversing the OAG's decision. Vigorously disagreeing with Louisville Metro's lawsuit against a private citizen for enforcing his legal rights, we captioned our analysis: "Louisville Metro fights to preserve its right to ignore open records statutory deadlines"
In the era of post-Fischer good feeling and pre-Greenberg improvements in open records policy, Trageser was forced to hire attorneys -- Dinsmore & Shohl's dynamic open records and open meetings duo of Jeremy Rogers and Suzanne Marino -- to represent him in Louisville Metro's lawsuit against him.
It was, to the best of my knowledge, an unprecedented lawsuit waged over a position that Metro Louisville surely advanced with discomfiture -- tantamount to, "I know the speed limit is 70 mph, your honor, but I would rather it be 90 mph for me."
Trageser asked the court to affirm the Attorney General’s decision and to award him penalties and costs, including reasonable attorney’s fees, under KRS 61.882(5). He correctly, in our view, contended that his appeal was not rendered moot by Louisville Metro’s production of redacted records on its on time and terms.
THE JEFFERSON CIRCUIT COURT RULING
Rejecting Louisville Metro's position that the Attorney General erred in not mooting Trageser's appeal, the Jefferson Circuit Court found:
". . . no error in the Attorney General’s [decision] that Louisville Metro violated the Open Records Act by failing to respond to Mr. Trageser’s request for records within five days as required by KRS 61.880(1). Louisville Metro never made an effort to justify the initial delay in its response to Mr. Trageser’s request for records, so the Attorney General could have made no other finding than that Louisville Metro violated the Open Records Act. Louisville Metro’s position is unreasonable because [a regulation] cannot override the Attorney General’s duty under [a statute] to provide an adjudicatory process to any person who, as here, 'feels the intent of [the open records law] is being subverted by an agency short of denial of inspection,' including by a 'delay past the five (5) day period.'"
Most importantly, the court held:
*"Louisville Metro’s position is also 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 hit the nail on the head in affirming Trageser's position, it curiously rejected Trageser’s request for penalties and costs, including reasonable attorney’s fees.
The court found that "Louisville Metro did not have a plausible justification for the initial delay in its response to Mr. Trageser’s request for records. The record, however, shows that Louisville Metro worked diligently to honor Mr. Trageser’s request after he filed his appeal with the Attorney General."
So where does that leave us? The court's mixed messages disincentives 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 cynical practice by imposing a financial burden on Trageser to defend the lawsuit initiated against him -- which he won!
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, to repeat, 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.
Attorney's fees and costs, if not penalties, were never more clearly mandated than in this case.
Open government advocates celebrate the victory on the principle that public agencies cannot rewrite the open records law to suit their convenience, but we quietly hope the case goes up on appeal.
If so, we will NOT be rooting for Louisville.