In June, we wrote about a tense hearing in the Franklin Circuit Court in the case of Office of the State Budget Director v Ellen Suetholz.

https://www.facebook.com/419650175248377/posts/463594957520565?s=184659…

For the first several minutes of the hearing, Judge Phillip Shepherd expressed consternation at the "wholly unnecessary" "avalanche of appellate litigation" by attorneys for the budget director that followed his earlier ruling in favor of Suetholz.

Shepherd held that the budget director violated the open records law in denying Suetholz's request for the actuarial analysis of the pension reform plan presented by the governor in 2017. He also agreed to hear her motion for recovery of attorneys' fees.

The central issue in the heated exchange at the June 12 hearing on attorneys' fees was that part of Shepherd's opinion that directed the budget director to disclose the analysis in ten days. Attorneys for the budget director seemed skeptical of Shepherd's assurances that it was never his intention to deprive the budget director of the opportunity to present the issues to an appellate court.

They justified their "panicked" reaction to Shepherd's rulings in this and previous cases which, they maintained, made it "extraordinarily difficult for agencies."

Shepherd's June 2019 final and appealable judgment awarding Suetholz's attorneys' fees stayed enforcement of the order directing disclosure of the actuarial analysis and allowed the budget director seven days to file a motion for injunctive relief with the Kentucky Court of Appeals.

The budget director appealed Shepherd's ruling to the Court of Appeals and moved the court for injunctive relief on July 1 to indefinitely postpone disclosure of the actuarial analysis.

Whether such a motion should be granted, generally, turns on whether the person seeking it has shown "irreparable injury;" whether the "equities" favor the person seeking it; and whether the case presents a "substantial question."

On August 13, Court of Appeals Chief Judge Denise Clayton granted the budget director's motion for injunctive relief.

https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3…

She first examined whether the budget director would be irreparably harmed by immediate disclosure of the actuarial analysis. She recognized that if the budget director were required to immediately provide Suetholz with the analysis "which [he] claims falls within an exemption to the Open Records Act, the information cannot be recalled and the appeal becomes moot."

Simply put, she permitted the budget director to continue to withhold the analysis on the theory that, once out, he can't put the toothpaste back in the tube.

Clayton then examined whether the case raises a substantial question. She critically examined the budget director's reliance on the preliminary documents exceptions, his arguments that the analysis "is marked 'draft' on its face," and an affidavit in which he stated that it was never "finalized."

Clayton weighed the competing arguments but declined to decide whether the analysis is preliminary. She held, "whether the analysis falls within an exemption to the Open Records Act, whether there was final agency action, and whether the analysis was incorporated into a final agency action, are substantial questions better suited" for review on the merits.

In closing, she identified the competing equities — the policy favoring enforcement of the open records law, on the one hand, and, on the other hand, the statutory exemptions enacted "out of concern that not all government records should be open to public inspection" — and indicated that the appeal would be expedited, or fast tracked, in recognition of " the public interest at stake."

For now, we must wait.