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The legal battle lines have once again been drawn, this time between the Institute for Justice and Metro Council members Barbara Sexton-Smith, Pat Mulvihill, Scott Reed, and Brandon Coan.

In November 2018, Arif Panju requested copies of records relating to a proposed ordinance regulating "itinerant vendors, peddlers, and solicitors" from each of these council members.

On behalf of the council members, Metro Council Clerk Stephen Ott denied the multipart request, characterizing it as "improperly framed" and unreasonably burdensome. He estimated that 8,300 records were located in Metro Council's search and argued that production of the records "would require an extraordinary amount of time."

Ott noted that the records would have to be reviewed for privileged attorney client communications and "personal information."

The attorney general's staff agreed that portions of the multipart request were insufficiently precise under the standard for requests to receive copies by mail. KRS 61.872(3)(b).

But the open records staff found that one of Panju's requests was precise, and that the council members' denial of that request violated the open records law. The council members failed to present clear and convincing evidence that fulfilling the request would impose an unreasonable burden.

In other words, Sexton-Smith, Mulvihill, Reed, and Coan lost, at least in part, Panju's open records appeal.

When faced with an adverse ruling, an agency has two options. It can acknowledge its error and produce the disputed records *or* it can appeal the attorney general's open records decision to circuit court within 30 days of the day the attorney general issued the decision. KRS 61.880(5)(a).

The agency does *not* have the option to ignore the decision. If it does not appeal the open records decision within 30 days, the decision has "the force and effect of law" and is "enforceable in the circuit court." KRS 61.880(5)(b).

The attorney general's staff issued the open records decision finding that Sexton-Smith, Mulvihill, Reed, and Coan violated the open records law on May 9, 2019.

None of them appealed the open records decision and the deadline for doing so has passed. That decision, as to Panju and the council members, has "the force and effect of law."

They are effectively bound by the decision. The circuit court must treat it as law.

This means that Panju should, in short order, obtain all records responsive to his "precise" request. Since the council members did virtually nothing to justify any redactions — not even reviewing the records for privileged or personal information — Panju should receive unredacted copies of all responsive records.

This would be the appropriate time for the courts to send a clear message to public agencies that they must play by the strict procedural rules or suffer the consequences.

No "do-overs."


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