News that Metro Louisville's Human Resource department generated no open records in the investigation of a Metro police major — who is alleged to have used offensive language during a May recruit training class and was subsequently demoted — is disturbing but not altogether surprising.

https://www.courier-journal.com/story/news/politics/metro-government/20…

Since Kentucky's open records law was enacted in 1976, agencies have threatened that they would stop creating records to avoid public scrutiny.

Through the years, that threat represented mostly saber rattling.

Then in April, Louisville Mayor Greg Fischer announced a new open records policy under the terms of which Metro Louisville would release in full all completed investigative files in cases of alleged employee misconduct.

During the press conference in which he announced the new policy, Fischer declared that the policy was an "important step in enhancing transparency and building community trust."

Apparently, the Mayor and Louisville Metro had second thoughts.

In early June, The Courier Journal submitted an open records request for records compiled in the investigation of the allegations against former Major Aubrey George that were the basis for his demotion.

The CJ received a single record — LMPD Chief Erika Shields' June 1 letter demoting Gregory. The city explained that "no final report or memorandum detailing the inquiry was written, nor any recommendations made."

That — as CJ staff writer Darcy Costello notes — "leaves the public in the dark on what Gregory said, the context of his remarks and any explanation he provided to investigators. It's also unclear who was interviewed as witnesses and what those individuals recalled."

Louisville Metro denied access to the only public records generated — notes taken by Human Resources in the course of the George investigation — under the open records exception for "preliminary drafts, notes, and correspondence with a private individual . . . . "

Louisville Metro's calculated failure to document the investigation and generate a final report — to communicate undocumented findings and recommendations orally rather than in writing — could not possibly do more to undermine transparency and community trust.

It is a flagrant violation of the agency's KRS Chapter 171 duty to "make and preserve records containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=4842

But the open records law applies only to records in existence. The law does not obligate a public agency to create public records in order to fulfill an open records request.

In the absence of a final investigative report, and consistent with records creation duties imposed by KRS Chapter 171, it is incumbent on Louisville Metro to release unredacted copies of the notes take by the Human Resource Department's staff, and related documentation verifying why the investigation was conducted by that department rather than the Public Standards Unit — not just the official line.

We firmly believe that, if asked to review this issue, the courts would agree.

"To provide accountability of government activities" and honor the "essential relationship" between open records laws — found at KRS Chapter 61 — and records creation and management laws found at KRS Chapter 171 — Louisville can and should release all notes and related correspondence.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=50009

This is, by design, the only "adequate and proper documentation" of the reason for the decision to demote George. It "furnishes information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities."

The mayor's spokeswoman states that "the mayor is satisfied that the allegations were reviewed, that swift action was taken and that media have been provided the only record in compliance with open records law."

The Kentucky Open Government Coalition, and — we trust — the public generally, is not as easily satisfied.