For the second time in less than a week an open records applicant has been forced into the courts to compel disclosure of public records.

On July 24, the Lexington Herald-Leader filed suit in Fayette Circuit Court to enforce its right to unredacted copies of financial records maintained by Historic Courthouse LLLP. Historic Courthouse is a limited liability partnership "that oversees the day to day operations of the former Fayette Circuit Courthouse," — a public asset into which the city sunk $22 million for renovations — under a $1 per year

lease that will expire in 2091.

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Its governing board consists of current and former city employees; its general partner, Historic Courthouse GP Inc., was created by a resolution approved by the Lexington- Fayette Urban County Council in March 2016; and local funds, along with state and federal tax credits, financed the renovation of the public asset it "oversees."

Any one of these things may render Historic Courthouse LLLP a public agency for open records purposes. If the Herald-Leader can clear this legal hurdle, it will be incumbent on Historic Courthouse LLLP to convince the Fayette Circuit Court that the records and parts of records it withheld — after it agreed to "voluntarily" disclose selected records — are exempt.

Since the open records law assigns the burden of proving that records are exempt to the public agency, and since Historic Courthouse LLLP did little more than assert that the records or parts of records it withheld from the Herald-Leader are proprietary — without plausible justification — it faces an uphill battle in the court.

In the suit filed against four Louisville Metro Council members last week by the Institute for Justice, the Council members would be well advised to waive the white flag of surrender.

In that case, the Institute for Justice obtained a favorable ruling from the attorney general's staff recognizing its right of access to communications exchanged by the four named Council members for a period of 17 months containing specified search terms and relating to a proposed ordinance regulating "itinerant vendors, peddlers, and solicitors."

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The Council members did not appeal the open records decision within the statutorily prescribed 30 day timeframe for appealing an adverse ruling from the attorney general. Having failed to do so, that open records decision had "the force and effect of law."

The Council members and the Institute for Justice are effectively bound by the decision. The Jefferson Circuit Court should require the Council to release unredacted copies of the records to the Institute for Justice.

The Herald-Leader bypassed the attorney general's office, as the open records law permits, and went directly to Fayette Circuit Court.

The Institute for Justice initiated its legal challenge by filing an appeal with the attorney general.

Why this difference in legal strategy?

There are any number of possible answers to that question.

The "pros" of initiating a legal challenge of an open records denial in the attorney general's office include:

1) Cost: An appeal to the attorney general costs nothing and can be handled without an attorney;

2) Time: An appeal to the attorney general should take no more than 50 days and many appeals are resolved within 20 days;

3) Legal effect: Contrary to a common misconception, an open records decision is *not* merely advisory. By statute, it has the force and effect of law if not appealed to circuit court within 30 days of issuance.

The "cons" of initiating a legal challenge of an open records denial in the attorney general's office include:

1) Complex issue: Some open records issues are very complex or have never before been examined by the courts or the OAG. Court have greater resources, unlimited time, and a broader range of powers to assist them in resolving complex issues;

2) OAG's entrenched position: In some cases, the attorney general has issued multiple decisions that the person seeking review disputes;

3) Time: Even if the attorney general issues a favorable ruling, the agency may appeal the attorney general's decision to the circuit court and the time spent in OAG review will be "wasted;"

4) OAG Enforcement: The OAG cannot enforce his open records decision, award penalties, impose costs or attorneys' fees;

5) Politicization: Past or present; real or imagined.

While there is a view that a favorable ruling from the OAG gives a litigant a "leg up" in the courts, the issue that the Herald-Leader raises may prove to be a complex one that is better suited for the courts. Conversely, the issue that the Institute for Justice raised has been examined many times in the past.

In both cases, however, it is unfortunate that judicial resources must be expended to adjudicate these disputes, taxpayer funds must be expended by agencies to defend them, and private funds must be expended to vindicate the principles of open government.