The release of a public agency records management audit is unlikely to evoke much general interest.
But the release of a records management audit of the Louisville Metro Police Department -- ordered by the Louisville Metro Council "on the heels of a lawsuit filed by a nonprofit police accountability group, The 490 Project, that accuses the department of destroying complaints against officers in violation of the Kentucky Open Records Act" -- should.
If recent national news teaches us anything, it teaches us that public officials who ignore laws governing preservation, storage, and retention of public records derail accountability and find themselves in legal jeopardy.
THE 490 PROJECT UNCOVERS PROOF OF ILLEGAL PUBLIC RECORDS DESTRUCTION AND MISMANAGEMENT
Nearly 30 years ago Kentucky lawmakers acknowledged the threat to transparency and accountability posed by records mismanagement. They enacted a statute recognizing an essential relationship between records management and the open records law.
Improper records management is fatal to records access. A public agency cannot produce a public record that is lost, removed, or -- worst of all -- prematurely destroyed.
Sadly, LMPD officials knew this -- "conceal[ing] at least 738,000 records documenting the sexual abuse of Explorer Scouts by two officers — then [lying] to keep the files from the public." LMPD officials later "negotiated away" -- in closed contractual negotiations with the Fraternal Order of Police -- the agency's legal obligations to retain citizen complaints filed against police officers. They blatantly ignored state regulations to evade accountability.
In October 2022, The 490 Project filed a lawsuit against LMPD alleging, among other things, public records mismanagement -- specifically, that LMPD prematurely and illegally destroyed complaints lodged against police officers.
"There's nothing sexy or cool about record retention policies," said 490 Project organizer Cara Tobe about the group's lawsuit, "but [they are] really important."
The LMPD Records Management Audit is a product of that lawsuit, the resulting April 2023 settlement, and the actions of Metro Council.
WHAT THE AUDIT REVEALED
The audit -- conducted over several months by Louisville Metro's Office of Internal Audit exposed serious deficiencies in the January 1, 2018 through December 19, 2022 review period, including:
• failure to assign responsibility for oversight of record retention at LMPD to a specific individual or unit;
• failure to conduct annual reviews of LMPD's records retention schedule (the Kentucky Libraries, Archives, and Records Commission approved requirements for retention and destruction of public records promulgated into state regulation; and
• lack of oversight for record retention organization wide at Louisville Metro Government.
As a consequence, public records were misdirected, misfiled, or missing altogether. The auditors found no illegalities -- a questionable finding in light of evidence of unauthorized records concealment and premature destruction.
Despite the seriousness of these findings, the OIA issued a relatively mild "internal control assessment rating of 'Needs Improvement,' indicating that the identified issues impact on operations is likely contained." The rating was based on a "thorough understanding of the process(es) for LMPD’s records retention and management . . . obtained through interviews with key personnel and examination of supporting documentation."
JUST HOW "THOROUGH" WAS OIA's UNDERSTANDING OF RECORDS MANAGEMENT?
Clearly the "key personnel" that OIA interviewed lacked the understanding -- or, minimally, the influence and/or will -- to implement legally compliant state records management programs.
Their input was translated into audit findings and recommendations through an OIA staff that consists of three Certified Internal Auditors (and three members pursuing the designation), one Certified Public Accountant and one Certified Fraud Examiner. With due respect to the staff's credentials, there is little to suggest any particular expertise in records management best practice. Guidance and input from Kentucky Department for Libraries and Archives staff could have enhanced OIA's mastery of the poorly understood subject.
A July, 2023, open records request for "records, including communications, exchanged by and between Louisville Metro staff and elected or appointed officials and staff of the Kentucky Department for Libraries and Archives, Division of Archives and Records Management, confirming efforts to obtain expert assistance on records scheduling and records retention and management" yielded no records.
No input was sought and none was given.
Indeed, the audit was conducted secretly and in isolation, there being no records responsive to the same open records request for "written updates, status reports, communications between and among Louisville Metro staff and elected or appointed officials and representatives of those officials --
Where records existed, Louisville Metro characterized them as "[a]udit work papers . . . not subject to open records in accordance with KRS 61.878(1)(i) and (j), as they are preliminary" -- statutory exceptions that Louisville Metro could have waived.
This may be standard operating procedure for an audit conducted by OIA, but an audit demanded by Metro Council and resulting from years of mistrust and public records malfeasance surely warranted some ongoing accounting and oversight.
To its credit, OIA went to the source for controlling laws -- Chapter 171 of the Kentucky Revised Statutes -- focusing on the provision requiring "the head of each local agency to establish and maintain an active, continuing program for the efficient management of the agency’s records."
Auditors examined LMPD's records retention schedule -- the foundational document in its records management program -- noting discrepancies and omissions, identifying disturbing formatting, storage, and preservation issues, and emphasizing the need for annual updates.
But auditors failed to recognize the value of KDLA's Archives and Records Management Division's expertise and the collaborative role it must play as LMPD and Louisville Metro -- "organization wide" -- undertake implementation of OIA's recommendations. They appear to mistakenly believe that KDLA's role is limited to implementation of local officials' preferences for retention, preservation, security, and destruction.
COLLABORATION: WHAT COMES NEXT?
The unheralded September release of the LMPD Records Management Audit might be interpreted as a tacit admission of wavering commitment to reform.
Only one media outlet reported on its release.
This much we know.
LMPD and Louisville Metro would do well to avail themselves of KDLA's expertise in pursuing corrective action on each of OIA's nine recommendations -- most with a target implementation date of August 1, 2024. The local agencies must acknowledge their subordinate roles in finalizing effective (and legally compliant) records scheduling and management programs.
In addition, The 490 Project (and the Kentucky Open Government Coalition) will be charting their progress.
As a member of the KDLA's Archives and Records Advisory Committee -- which thoroughly vets and recommends approval/disapproval/modification of all state and local records retention schedules to the Commission -- I, for one, will continue to question, probe, and monitor improvements.
i am anxious to review revised records retention schedules for LMPD and Louisville Metro at the September 2024 (or earlier) advisory committee meeting -- as well as to receiving confirmation of KDLA's role in assisting in the development of effective records management programs for both.
What "mechanism for tracking progress and verifying compliance," if any, has been established? What reporting and updates, if any, can we expect?
Finally, we cannot permit the corrective actions to which LMPD and Louisville Metro have committed to languish in indifference and obscurity.
Nor can we permit The 490 Project's victory in its open records/records management litigation against LMPD -- and the Metro Council's commitment to securing reform in LMPD's open records/records management programs -- to be forgotten.
The real work now begins.