ICYMI: WDRB recently reported that Louisville Metro's Ethics Commission has sued the city and County Attorney Mike O’Connell, alleging that it doesn’t have control over its own records & is “at the mercy” of Metro's open records personnel to respond to open records requests submitted to the Commission.
As a result, the suit alleges, some records have been made public without the Commission's knowledge or input, and it’s not known if Commission documents have been withheld.
Misrepresentations to the Kentucky Attorney General concerning Metro's stranglehold on Commission records, the suit alleges, have resulted in the issuance of two open records decisions in which the Kentucky Attorney General determined that the Metro and the Ethics Commission violated the open records law by failing to issue timely responses to records requests.
Responding to these open records appeals, Metro claims that it is "at the Commission’s mercy with respect to producing the Commission’s records."
The Commission flatly denies this statement, asserting that "it does not, in fact, have access to its own records, and heavily relies on Metro staff to facilitate obtaining its records."
The Attorney General resolved the interagency records custody dispute in favor of Louisville Metro based on the existence of a Metro ordinance -- approved in 2003 and amended in 2010 -- establishing custody and control of Commission records.
A lot can happen in 13 years. By all indications, this may be a problem of more recent vintage.
One thing is certain.
The challenged process for responding to open records requests resulted in a May, 2023, lawsuit, filed by Council Republican Anthony Piagentini, in which he claimed the Louisville Metro Ethics Commission violated state law by releasing records that he says should have been kept confidential -- a decision that may not have been made by the Commission but by the new and improved Metro Government Department of Records Compliance -- without consulting with the Ethics Commission.
Piagentini alleged that the city’s ethics commission “eviscerated [his] expectation to
a confidential and fair process” by disclosing his response to the complaint against him.
A Jefferson Circuit Court judge rejected Piagintini's claim, ruling that "some filings in the case can remain confidential until the ethics inquiry is completed, including subpoenas and recommendations by investigators. But records such as pleadings and other motions can be made public."
Public records advocates applauded the court's ruling as a victory for the public's right to know.
But consider: shouldn't the Commission's input be sought before a final decision to release or withhold Commission records is made. Only the Ethics Commission is in a position to decide whether disclosure might interfere with and/or compromise an ethics investigation or adjudication under its jurisdiction. If, as here, legal authority exists to deny an open records request for pre-decisional documents, the Commission should at least be afforded the opportunity to weigh in on the need for governmental confidentiality and the point at which that need is satisfied and the records must be released -- not to undermine the public's right to know, but to ensure that pending ethics complaints are reviewed/adjudicated under circumstances that are free from allegations of prejudice, real or imagined, resulting from premature disclosure of records related to the complaint.
This is the point of contention in the Ethics Commission's lawsuit against Louisville Metro.
As WDRB reports, "the lawsuit claims that the Commission only finds out about requests for its records if a Metro government employee contacts it. Records requests for city departments and agencies are submitted through an online portal called 'NextRequest.'
"In one example cited in court documents, [Commission attorney Todd] Lewis claims the commission wasn’t made aware of a July 25 request until August 1 – the date when a reply is due."
Two lawsuits suggest that this may be a component of the Greenberg administration's open records reform policy -- aimed at "both quicken[ing] the processing of requests and help[ing] prevent future backlogs" -- that warrants reconsideration.