Defendant Lawrence Trageser has filed a Motion for Summary Judgment in an open records appeal filed against him in March by Louisville/Jefferson County Metro Government in Jefferson Circuit Court.
Louisville Metro appeals the Kentucky Attorney General’s January 18, 2023, decision — 23-ORD-007 — determining that Metro violated the Open Records Act by failing to respond to Trageser’s open records request within the statutorily mandated timeframe.
Metro claims that although it admittedly failed to issue a timely response to Trageser’s open records request, the Attorney General “incorrectly found, in contradiction to Kentucky law, that Louisville Metro violated the Open Records Act.”
“In fact,” attorneys Jeremy Rogers and Suzanne Marino — of the Louisville office of Dinsmore & Shohl — argue on behalf of Trageser, “Metro goes so far as to ask the Court to ‘find Louisville Metro did not violate the Open Records Act because the issue was required to be moot.’”
“Aside from the hypocrisy inherent in a plaintiff pursuing an admittedly moot case,” Rogers and Marino argue, “it appears what Metro actually seeks is the Court’s approval to continue blatantly violating the Open Records Act with impunity.” They urge the Court to “reject that invitation.”
As noted, in 23-ORD-007 the Attorney General held that Metro violated the Open Records Act by failing to respond to Trageser’s open records request within five business days as required by KRS 61.880(1). In fact, Metro failed to respond until after Trageser appealed to the Attorney General.
In his motion, Trageser argues:
“Metro does not deny that it violated the law. Instead, Metro contends that the Attorney General should have overlooked the violation and should have dismissed Trageser’s appeal as moot because Metro eventually provided the requested records more than a month late. In essence, Metro seeks the approval of the Attorney General and this Court to ignore its obligation to respond to open records requests in a timely fashion. Metro’s desired result, however, is clearly contrary to the law and should be rejected.”
Even Metro’s delinquent response, he asserts, was deficient. Metro belatedly responded to the Attorney General in reaction to Trageser's appeal and not to Trageser and his original open records request. Further Metro conveniently, and "unilaterally," extended its deadline for final production of records responsive to the request for a total of 40 days from that original request.
Trageser and his attorneys advance multiple persuasive arguments in support of their position that the issue presented in his appeal to the Attorney General was not moot -- not the least of which is the effect of an overlooked 2021 amendment to the statute dealing with subversion of the intent of the open records law short of denying inspection, KRS 61.880(4).
The "mootness" regulation -- promulgated by the Office of the Attorney General in the mid-90s -- has, over time, been exploited by public agencies hedging their bets that they will not be challenged by a records requester whose request they simply ignore.
If those agencies' failure to respond is appealed, Trageser's attorneys note, they have cynically evaded sanction by releasing the requested records with the expectation that the Attorney General will "moot" the appeal.
The 2021 amendment to KRS 61.880(4) targeted this ploy by adding to the catalogue of actions constituting subversion of intent of the open records law "delay past the five day period . . . [and] excessive extensions of time."
In an earlier post, the Kentucky Open Government Coalition observed that the amendment:
"imports a legislative resolve to rigorously enforce the five working day deadline for final agency response and justifies a change in position where a request is not denied but ignored."
Should Trageser succeed in defending this lawsuit -- initiated by Metro Government, ironically, under a new mayoral administration focused on enhancing transparency and improving open records compliance -- and should the Office of the Attorney General consistently refuse to "moot" open records appeals based on agency failure/refusal to respond to records requests, the era of public agencies which "blatantly violate the Open Records Act with impunity" may, at long last, end.