Every open government victory is welcomed, but the April 19 settlement of The 490 Project's open records/records management lawsuit against the Louisville Metro Police Department comes with a hint of regret.
Settlement of the lawsuit -- filed in Jefferson Circuit Court in October, 2022, against LMPD by the grassroots group following multiple unsuccessful open records requests for citizen complaints against police officers -- inures to the public benefit in at least three ways.
• The settlement is a clear win for judicial economy. Why tie up the courts' limited resources with a lawsuit that LMPD could not win -- and The 490 Project should not have been forced to file -- inasmuch as the open records law has mandated disclosure of complaints leveled by citizens against police officers since at least 1982.
City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky. Ct. App. 1982) https://casetext.com/case/city-of-louisville-v-courier-journal-etc
• The settlement is a clear win for taxpayers. It was the taxpayer who would have ultimately born the cost of LMPD's futile defense to The 490 Project's lawsuit as well as -- in all likelihood -- the cost to The 490 Project to litigate that lawsuit to a final conclusion in the courts. Given the settled nature of the law, the courts would have surely awarded The 490 Project attorneys fees, costs, and even penalties for LMPD's willful withholding of the disputed records.
Why force the public to shoulder the monetary burden associated with protracted litigation to defend LMPD's legally unsupportable and unprincipled position?
• Finally, the settlement is a clear, and long overdue, win for police accountability. It may -- emphasis on "may" -- represent the foundational "first step" toward the restoration of public trust in Louisville law enforcement, especially because it comes on the heels of the heroic actions of LMPD officers during the April 10 mass shooting at Old National Bank.
But all of these positives are, arguably at least, offset by one negative: Kentucky must, for now, await another lawsuit that puts squarely before the courts a first of its kind claim that a public agency subverted the intent of the open records law through the mismanagement/premature destruction of public records in contravention of state law governing the minimum retention of those records.
"This critical public records abuse," the Kentucky Open Government Coalition wrote in an op-ed published in October, 2022, "has largely evaded public notice but has long been employed by public agencies as a means of evading public accountability.
"So much so, in fact, that in 1994 Kentucky lawmakers expressly recognized 'an essential relationship between the intent of this chapter [dealing with the public’s rights and public agency duties under the open records law] and that of KRS 171.410 to 171.740, dealing with the management of public records.'
"Simply put, without effective public records management there can be no public records access."
Fortunately, the pressure exerted by The 490 Project prompted Louisville Metro to launch a much needed enterprise wide records management audit. At long last, the practices that yielded aberrations like the LMPD "formal"/"informal" complaint dichotomy -- and disparate records retention periods -- are coming under serious scrutiny.
We must return, again and again, to this audit to ensure that it is thoroughly and effectively conducted by "auditors" familiar with records management best practices and that it results in meaningful improvement.
And we must vigorously support The 490 Projects' efforts to expose collective bargaining negotiations between city officials and public agency unions, like the River City Fraternal Order of Police, to the light of public scrutiny.
It was, at least in part, secret contract negotiations that resulted in past patterns of records mismanagement, obfuscation, and delay in records access.
Under the terms of the settlement, the disputed records must be released in two weeks. This make or break moment will reveal whether the Greenberg administration is committed to complying with the open records law and advancing the public's right to know.
For now, the 47 years old records management/records access issues can wait.