23-ORD-134
June 13, 2023
In re: J. Brooken Smith/Louisville/Jefferson County Metro Government &
Louisville/Jefferson County Metro
Government Ethics Commission
Summary: Louisville/Jefferson County Metro Government (“Metro”)
and the Louisville/Jefferson County Metro Ethics Commission (“the
Commission”) violated the Open Records Act (“the Act”) when they
invoked KRS 61.872(5) to delay access to records and failed to provide
the records by the date promised. Neither agency has carried its burden
that a delay of one month to provide requested records is reasonable.
Open Records Decision
On April 24, 2023, J. Brooken Smith (“Appellant”) submitted to Metro a
request to obtain copies of records related to another open records request it had
received. The requested records can be divided into two categories—records belonging
to Metro, and records belonging to the Commission. With respect to Metro’s records,
the Appellant sought a copy of “[a]ny and all requests” from a specific news-gathering
organization and a reporter on March 28, 2023, in which the organization or reporter
sought to inspect a councilman’s response to an ethics complaint. The Appellant also
sought any written communications “sent or received by Louisville Metro
Government” regarding its response to that request, as well as a copy of Metro’s
response to that request and all documents it produced. With respect to the
Commission’s records, the Appellant sought any written communications sent or
received by members of the Commission regarding its disposition of that same open
records request.
On May 3, 2023, Metro responded to the request by stating the requested
records were “in active use, storage, or not otherwise available” because it needed
additional time to gather and review responsive records and the records required“legal review.” Citing KRS 61.872(5), Metro stated it would provide the responsive
records “on or before the close of business on May 10, 2023.” However, on May 10,
Metro again cited KRS 61.872(5), and again stated that it needed to search for
responsive records and that the records would require “legal review.” This time, it
advised the Appellant the responsive records would be available “on or before the
close of business June 7, 2023.” This appeal followed.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny it and explain why.
KRS 61.880(1). Or, if responsive records are “in active use, in storage or not otherwise
available,” a public agency may delay access to them by stating the earliest date on
which they will be available and a detailed explanation of the cause of the delay.
KRS 61.872(5). This Office has previously found that an agency violates the Act when
it invokes KRS 61.872(5) to delay access to records and then fails to produce the
records by the date to which it committed itself. See, e.g., 23-ORD-079; 21-ORD-011.
While no party to this appeal disputes what KRS 61.872(5) requires a public
agency to do if it delays access to records that are “in active use, storage, or not
otherwise available,” Metro argues it is not the agency responsible for complying with
the Appellant’s request. Previously, this Office has recognized that Metro serves as
the official records custodian for all records in the possession of Metro’s various
departments and divisions, pursuant to Metro’s rules and regulations adopted under
KRS 61.876. See, e.g., 22-ORD-167. However, the Commission was established by
Louisville/Jefferson County Metro Government Code of Ordinances (“LMCO”)
§ 21.05(A)(1). Its members are appointed by the Mayor and confirmed by the Metro
Council. LMCO § 21.05(C)(1). “All files, records, and documents maintained by, or in
the possession of any ethics board, agency, or office under the jurisdiction of Jefferson
County or the former City of Louisville shall be delivered to the Ethics Commission
and thereafter maintained by the Ethics Commission.” LMCO § 21.10 (emphasis
added). Moreover, the Commission is required to obtain legal counsel who “shall not
be employed counsel or under contract in any capacity with Metro Government, or
associated with an attorney employed by or under contract in any capacity with Metro
Government.” LMCO § 21.05(E).
It therefore appears the Commission is the official custodian of its own
records.1 Nevertheless, the Office concludes Metro is also a proper party to this appeal
because most of the Appellant’s request sought Metro’s records, not the Commission’s
records. Moreover, the Commission has authorized Metro to respond on its behalf to
requests seeking to inspect the Commission’s records, as its website directs
1
The distinction is important because there appears to have been a miscommunication between
Metro and the Commission with respect to Metro’s disposition of the news-gathering organization’s
request, which led the Appellant to submit his request for records responsive to Metro’s disposition of
that request.requesters to use Metro’s NextRequest system, through which Metro processes
requests to inspect records. See, e.g., 22-ORD-167. Here, the Appellant sought records
regarding the way Metro handled a previous request on behalf of the Commission.
Specifically, he sought the request to inspect records submitted by the news-
gathering organization, which would have been routed to Metro per the Commission’s
authorization for Metro to process any requests directed to it through NextRequest.
He also sought written communications “sent or received by employees of Louisville
Metro Government regarding” the news-gathering organization’s request. Finally, he
sought the response Metro issued to the news-gathering organization’s request and
all the responsive records it sent to the news-gathering organization. All these records
would be in the possession of Metro, which it admits is “the processing agent for the
Commission’s open records requests.”
Metro claims it invoked KRS 61.872(5) on behalf of the Commission, and
committed to the original May 10 deadline based on the Commission’s instructions.
When it later became apparent to the Commission that it could not produce
responsive records by then, Metro issued a second response, again invoking
KRS 61.872(5) and delaying inspection until June 7, 2023. While Metro is apparently
at the Commission’s mercy with respect to producing the Commission’s records, it has
not explained why it could not produce, at a minimum, a copy of the news-gathering
organization’s request or Metro’s response to it. Neither the Commission nor Metro
have explained why it would take more than a month to produce copies of records
that have allegedly been produced once before and for which no exception to
inspection is readily apparent. Therefore, Metro violated the Act by delaying access
to those records and then missing its own deadline for production.
Similarly, Metro and the Commission missed their self-imposed deadline to
produce copies of the Metro employees’ and the Commission members’ written
communications regarding the request. For that, both agencies violated the Act.
Moreover, the Commission explains on appeal it is currently involved in litigation
against the Appellant’s client, in which some of these communications may be
relevant but are otherwise protected by the attorney-client privilege. The Commission
argues that, against the backdrop of this litigation, it was not unreasonable to delay
access until June 7 to ensure no privileged communications were released. The
Commission is correct that privileged communications between attorneys and their
clients are exempt from inspection. KRS 61.878(1)(l); KRE 503. But the Commission
also carries the burden of proof in sustaining its action. KRS 61.880(2)(c). Neither the
Commission nor Metro have stated the number of potentially responsive records that
are in issue, nor how many are be protected by the attorney-client privilege. To
determine whether any delay under KRS 61.872(5) is reasonable, the agency must,
at a minimum, quantify or estimate the total number or potentially responsive
records. See, e.g., 22-ORD-176. The Office can then compare the number of records
and the claimed exemptions at issue against the length of delay the agency claims isrequired. Without knowing the number of records at issue here, the Office cannot find
that a delay of more than a month was reasonable. Accordingly, both the Commission
and Metro violated the Act.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#195
Distributed to:
J. Brooken Smith, Esq.
Annale R. Taylor, Esq.
Natalie Johnson, Esq.
Alice Lyon, Esq.
Nicole Pang, Esq.
Todd Lewis, Esq.