The Institute for Justice has won an important victory for public access in an open records lawsuit arising from four Louisville Metro Council members’ willful withholding of records, including emails, relating to the battle over a food truck ordinance in 2018 and 2019.
Details are limited, but WHAS-11 reports:
“The Institute sued to get access to records that revealed former Metro Councilwoman Barbara Sexton-Smith was working on behalf of a restaurant owner to cripple food trucks.
“The Institute also said she then leaned on former Metro Councilman Brandon Coan and current councilmen Pat Mulvihill and Scott Reed to introduce and help pass the ordinance.
“The Institute then had to sue for the four to remove redactions from the records and to declare they willfully violate the state’s open records law.
“The court agreed and the four current and former council members have 30 days to turn over the unredacted records.
“They also have to cover the court and attorney fees along with penalties for each record withheld.”
From this, we deduce that a Jefferson Circuit Court found not only that the council members violated the open records law, but that their conduct was egregious, warranting an award of statutory penalties of up to $25 per day, for each day the records were withheld, as well as attorneys’ fees and costs.
“‘Willful,’” Kentucky’s Supreme Court has observed, “connotes that the agency withheld requested records without plausible justification and with conscious disregard of the requester's rights.”
The Institute for Justice — which is identified as “a public interest law firm representing clients free of charge in cutting-edge litigation defending vital constitutional rights” — provides more detail in a May 27 press release:
“The Institute for Justice (IJ) sued the four council members after they refused to turn over the public information in response to an open records request seeking transparency about a proposed ordinance targeting food trucks.
“The 2018 proposed ordinance came just months after Louisville Metro agreed to settle a constitutional challenge to a law that made it illegal for food trucks to vend within 150 feet of a restaurant.
“The federal consent decree barred Louisville Metro from using government power to target food trucks and treat them like second-class citizens. IJ represented food truck owners in their 2017 legal challenge, and, after winning that case, sued the four council members for violating Kentucky’s open records law when attempting to stifle food trucks with more red tape.”
“IJ sent an open records request in November 2018 seeking each council member’s emails and other documents discussing Louisville’s food trucks.
“The council members responded to IJ’s open records request by noting that they had over 8,300 responsive documents, but they refused to make any of those records public. IJ appealed to the Kentucky Attorney General’s office, and in May 2019 the AG determined that “the Council members violated the Open Records Act” and mandated that they turn over the documents. The council members still refused to comply. The Institute for Justice was forced to sue for the records and only then did the four lawmakers attempt compliance, this time providing public records but redacting the names of all individuals they were corresponding with regarding the food truck ordinance.”
IJ challenged the redactions and ultimately prevailed, declaring:
“Public records belong to the public. The court’s ruling makes clear that when government officials willfully violate Kentucky’s open records law, there are consequences.”