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Louisville Metro once again gets "Gerthed" for mixed open government messaging in today's Courier Journal.…

Courier columnist Joe Gerth asks: "Is the city running LMPD or is LMPD running the city?"

He questions whether Metro Government officials have learned anything from recent events. If they have, Gerth observes, "it took Mayor Craig Greenberg being embarrassed at a recent press conference when he was forced to admit he knew nothing about a lawsuit LMPD filed against Louisville Public Media to block it from getting records it sought under the Kentucky Open Records law."…

"'This is the first I’m hearing of that appeal,' Greenberg said.

"It was a stunning admission."

Gerth continues:

"Greenberg has talked ad infinitum about transparency and how his administration wouldn’t try to hide things from the public.

"County Attorney Mike O’Connell said in an interview his office would never file a lawsuit or appeal without first clearing with the mayor’s office or someone at the city department level who had the power to make such a decision.

"Greenberg said Tuesday former chief Jacquelyn Gwinn-Villaroel had given 'tacit approval' for the county attorney to file the suit and never informed him or — when she was suspended and then forced to resign — her replacement, interim Chief Paul Humphrey.

"Greenberg said the administration’s policy has changed to ensure he is informed of all lawsuits and appeals filed on the city’s behalf. That’s the way it should be.

"Meanwhile, he said his administration is studying the suit to determine if it will continue to prosecute, or if it will ask to dismiss it and abide by the attorney general’s decision."

Whatever the administration's ultimate decision on pursuing the open records appeal against Louisville Public Media in circuit court -- or how consistently it enforces the new policy designed to keep the mayor informed of open records litigation -- it may be too little too late.

This is not the first appeal of an unfavorable open records decision and/or deficient records management challenge in his administration. The 490 Project initiated legal action to expose Metro's routine open records evasion and accountability avoidance through closed FOP collective bargaining sessions that resulted in illegal records retention contract terms authorizing premature public records destruction.…

The case ended in a settlement under the terms of which Metro agreed to pay $15,256 to The 490 Project in attorneys’ fees and costs. A resulting records management audit -- ordered by Metro Council -- yielded less than satisfactory results and received very little media coverage.…

In another incident, Metro sued Lawrence Trageser, a private citizen, in an appeal from an unfavorable open records decision.…

Metro's argument that Trageser's appeal should have been "mooted," and no open records decision issued by the attorney general, when Metro belatedly disclosed the records Trageser sought prompted Judge Eric Haner to declare in his 2023 opinion:

"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."

The Kentucky Open Government Coalition described the legal action against Trageser as "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.'"

The Jefferson Circuit Court was having none of it, admonishing Metro but (sadly) declining to award Trageser his attorneys fees.

And, finally, there was the mayor's insistence that he was constrained by the open records law to conduct a secret search for the LMPD chief--and withhold the identities of applicants for the position--was simply untrue.

The Kentucky Open Government Coalition reminded Greenberg that the exemptions to the open records law -- authorizing nondisclosure of records -- are "a shield & not a shackle.” Agencies are not “bound” by exceptions. "The General Assembly did not intend to mandate an iron rule of non-disclosure whenever an exemption applies." In other words, a public agency can waive the exemptions to promote the public's right to know.

It's unlikely that Metro has learned enough from the mayor's embarrassment at a press conference to change the underlying Metro-wide culture of dismissiveness -- if not outright hostility --toward the open records law.

It's likely that the tail will continue to wag the dog.


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