Quite an exciting way to return to posting, after taking a few days off to write briefs, as we celebrate a citizen victory for open government in the appellate courts.
In an open records dispute that dates back to his November 2013 request for a City of Taylorsville police report of a domestic abuse call involving a city commissioner, pro se litigant Lawrence Trageser prevailed in an opinion, City of Taylorsville v. Trageser, issued by the Court of Appeals on October 11.
Trageser appealed the city's denial of his request in which the city argued that the requested record was a JC-3, used for reporting child and adult abuse to the Cabinet for Health and Family Services.
In an open records decision issued in early 2014, the OAG held that the city improperly withheld the report of alleged spouse abuse based on a statute pertaining only to child abuse.
KRS 620.030 requires a person to report suspected cases of a dependent, neglected, or abused child. KRS 620.050(5) provides for the confidentiality of a "report of suspected child abuse, neglect, or dependency." Because "there is nothing in KRS 620.050 to suggest that 'allegations of abuse between a husband and wife,' are included in the scope of this statute," the OAG rejected the city's argument, holding that "the mere fact that a JC-3 form can be used to report child abuse as well as adult abuse does not extend the reach of a confidentiality provision in the Unified Juvenile Code to include cases not involving children."
The city did not appeal the OAG's decision within 30 days and the decision thereafter had the force and effect of law. Against Trageser's vigorous objections, the city released a heavily redacted copy of the report, invoking the privacy and preliminary documents exceptions for the first time and asserting that the OAG did not address whether redactions were proper.
Thirteen months later, Trageser filed a complaint in the Spencer Circuit Court and was successful in defeating the city's claim that he waited too long to file. The court reviewed the report and ordered its disclosure to Trageser with limited redactions.
The city appealed that circuit court opinion to the Court of Appeals and received a thorough tongue lashing from the court, which observed: "We cannot condone the City's evasive tactics which are prevalent throughout the history of this case. The City declined its opportunity to argue for redactions in either its initial response to Trageser or its letter to the Attorney General in response to Trageser's initial review request. We decline to let the City gain an advantage from its dilatoriness and apparent gamesmanship in practicing this case."
The court compared the city's conduct to that of the Cabinet for Health and Family Services' conduct In a 2015 case â not a flattering comparison.
https://law.justia.com/cases/kentucky/court-of-appeals/2015/2012-ca-000…
As had the court below, the Court of Appeals rejected the city's argument that Trageser's circuit court action was untimely. Oddly, the city relied on a 2010 case recognizing that there is no time limit for filing an open records action. The court dismissed the city's strained argument that the case could be construed to require an action to be commenced within a reasonable time, opining: "The statute sets no deadline for filing an action to enforce an opinion. Even if we extend [the 2010 case] to also allow a court to require an action to enforce an Attorney General's opinion to be filed within a reasonable time," the city did not show that Trageser's complaint was untimely.
https://caselaw.findlaw.com/ky-supreme-court/1542420.html
Finally, the court affirmed the limited redactions approved by the circuit court, holding that "the City has not met its burden to justify further redactions." The court "agree[d] with the City that the Kentucky Supreme Court did not intend to limit permissible redactions under the privacy exception to only those discussed in [a 2013 case]. But the City presented no substantive evidence other than its own self-serving, belated speculation, as to why it should be able to further redact the report. Mere embarrassment or inconvenience to the persons listed in the report is insufficient as a basis to limit an open records request."
https://scholar.google.com/scholar_case?case=476919717107955788&hl=en&a…
What are the important "takeaways" in City of Taylorsville v. Trageser? 1) Public agencies will not be permitted to place a requester in a procedural "Catch 22" by failing to raise the redaction issue before the Attorney General and then arguing that the requester cannot seek to contest the redactions in circuit court "because he could not ask the circuit court to address matters not resolved in the Attorney General's decision;" 2) the open records law does not place deadlines on filing open records challenges; 3) limited redactions based on a "a compelling interest in the privacy of law enforcement records" are permissible, but not redactions based on the desire to protect persons identified in those records from "mere inconvenience or embarrassment."
And perhaps the most important takeaway: Given a healthy dose of tenacity and the right temperament, a private citizen may advance the cause of open government by litigating a case to a successful conclusion without the direct assistance of legal counsel.
It is by no means easy, but it can be done.
Now we wait to see if the City of Taylorsville will squander additional public funds by seeking discretionary review of the Court of Appeals' opinion in the Supreme Court.
