A headline in the January 16 digital edition of The Courier Journal announces: “Fischer administration had process for burying records requests that were 'embarrassing'”

https://www.courier-journal.com/story/news/2023/01/16/louisville-transp…

It begins, “A political appointee of former Louisville Mayor Greg Fischer improperly screened open records requests and withheld information considered ‘embarrassing,’ The Courier Journal has learned.

"The practice was discovered and discussed by Mayor Craig Greenberg’s transition team last fall while learning about the open records process from Metro Government staff, Metro Councilman Anthony Piagentini, R-19th District, told The Courier Journal this month. Piagentini was part of that discussion while serving on a transition team committee focused on the city's budget and operations.

"Piagentini said Annale Taylor, Fischer’s general counsel from 2020 to 2022, became a 'gatekeeper' for open records requests, though her position had no formal role in the process.

“'Anything that had the potential to be embarrassing went to her,' he said. 'And it was clear that she was making decisions on at least when to release, if not (whether) to release at all.'"

Piagentini is, then, the source of these claims. The new administration ignored recommendations that it open transition team meetings and records to the public, and we have no way to verify the claims or test the proof offered. 

https://www.courier-journal.com/story/opinion/2022/12/08/move-louisvill…

Instead, we must be satisfied with a selected leak from a participant in a meeting to which the public had no access. 

Let’s assume Taylor was tasked with reviewing sensitive open records requests. Two inferences can be drawn. 

1. She was instructed to “bury" embarrassing requests.

Or

2. She was instructed to review incoming requests and outgoing responses to keep officials apprised of sensitive requests •and• to troubleshoot with the ultimate goal of improving Metro’s open records performance.

The truth may lie somewhere in between. 

But there can be no doubt that Metro officials knew it is legally impossible to effectively "bury"an open records request. The open records act establishes a right of appeal — to the attorney general or the courts — of agency inaction or unauthorized concealment of public records. 

And there can be no doubt that — whatever her charge from the Fischer administration — Taylor was doomed to failure. 

Under scenario one, she walked -- eyes wide open -- directly into a legal buzzsaw. 

Under scenario two, she faced a nearly insurmountable challenge -- exacerbated by an unwieldy and inefficient open records policy, at least two uncooperative and defiant agencies, a notoriously bad open records portal, and — most important — a series of events that rocked the community and resulted in an unprecedented number of records requests from across the Commonwealth and the country.  

To be clear: Public agencies can, and often do, assign the duty to “screen open records requests” to agency counsel. Agencies do not violate the open records law in doing so unless, and as a direct result, they exceed the deadline for producing the public records or withhold public records with no legal justification. 

Agency counsel review of “sensitive” requests and the records to be produced in response to those requests is the rule — not the exception.

With one caveat, past attorneys general have approved a public agency’s “policy of processing open records requests through its legal department. In our view, this policy ensures uniformity and adherence to the law.” Citing 93-ORD-134. 

What was that caveat? 

“Care must be taken that such a policy does not interfere with the timely processing of an open records request.” Citing 00-ORD-166.

https://www.ag.ky.gov/Resources/orom/2010/10ORD154.doc

There was/is nothing nefarious in this. 

A former colleague and 17 year open records/meetings veteran was hired by the Justice Cabinet as an open records troubleshooter in November 2020 to improve open records compliance at the Department of Kentucky State Police, another repeat open records offender. 

https://kyopengov.org/blog/theres-more-shakeup-department-kentucky-stat…

She, like Taylor, faced a daunting challenge. 

Progress is slow -- often imperceivable. This is a result of: 

•bureaucratic inertia;

•a law that contains penalties many public agencies accept as a cost of doing business;

•high ranking officials who have little to no understanding of, or attach any value to, the law; and 

•critics who are quick to demonize public employees who fail to live up to their expectations — rather than the law’s requirements. 

No one disputes the failures of the Fischer administration in discharging its open records duties. 

But open records noncompliance did not begin with Fischer. The Abramson administration’s compliance record was also tarnished. The obstructionism of at least one of Abramson's general counsels is nothing short of legendary.

Newsprint may be black and white, but the truth is often gray. Unproven claims are not facts. 

Mayor Greenberg would be well advised to watch his back. He may soon find himself the next designated “enemy of transparency.”