Center for Investigative Reporting sues UofL Foundation after violations of Open Records Act

The Kentucky Center for Investigative Reporting has sued the University of Louisville Foundation after the Office of the Attorney General has ruled the foundation violated the state's open records laws four times since August.

In a news release, the center said it has been fighting to get records from the foundation for more than seven months, records that detail ethics and disclosure forms, and payroll and financial documents.

The lawsuit states the foundation has resisted or ignored the request for such documents in order to delay access to or block access entirely.

As an investigative news agency, the center believes the information about the finances and administration of the University of Louisville Foundation are of a public interest and need to be reported. The center wants to increase the transparency of state institutions.

This is not the center's first lawsuit against the university; it sued and won in May 2015.

The lawsuit was filed on Thursday, Sept. 15, in Jefferson County Circuit Court. The center is represented by Jon Fleischaker and Michael Abate from the Louisville firm of Dinsmore & Shohl.

For more on the opinions Beshear has issued against the Foundation click the number of the opinion: 16-ORD-164, 16-ORD-189, 16-ORD-192, 16-ORD-204.

Public agencies cannot subvert Open Records Act by storing information with private contractors

Public agencies cannot hire private contractors to manage their website and then ignore requests for records and claim they aren't in possession of the records.

On July 25, 2016, Attorney General Andy Beshear issued the opinion, In re: Lawrence Trageser/Spencer County Fiscal Court, 16-ORD-141.

The first question the attorney general's office took up was whether the fiscal court had violated the Open Records Act by not searching for requested records sufficiently. The opinion ruled that the Spencer County Fiscal Court violated the law by not searching enough for requested records.

The second question was whether the county also violated the law by failing to maintain access to emails through use of county government addresses maintained by a private contractor. 

The opinion found the county subverted the intent of the Act by failing to maintain access to emails using county government addresses. 

Trageser’s request was submitted Jan. 26, 2016, and sought all records dealing with communications of two magistrates, Jim Williams and Brian Bayers, specifically through email by their county government email addresses. 

The fiscal court replied the search would take time and gave a specific date the request would be fulfilled, explaining someone would have to examine the emails to see if any exemptions applied. On March 22, 2016 the county provided its full response to the request.

Its reply stated that a private entity runs the website, and the fiscal court did not have custody or control over the email addresses. Therefore, Trageser's request could not be fulfilled because the Open Records Act applies to records “in the possession or control of a public agency.” Since the records were held by the private entity, the fiscal court argued the Open Records Act did not apply. 

Beshear's opinion stated that KRS 61.87(2) provides that a public record is “documentation . . . which are prepared, . . . used in the possession of or retained by a public agency.”

The emails, Beshear held, were prepared and used by the fiscal court. He also pointed out that the magistrates themselves have access to their own emails, and that search could have been done to obtain the requested records, per 14-ORD-181, which made the search inadequate and a violation of the Open Records Act. 

It is not the actual place where a record is kept, rather the nature and purposes of the record which makes it a public record, said Beshear citing 14-ORD-192. 

Because the fiscal court is not maintaining access to its own records, it violated the records retention schedules and warrants a referral to the Department for Libraries and Archives. The attorney general's opinion said the county governments cannot take the public records out of the emails by simply hiring an outside contractor to maintain them.

Zoning Commission miscontrusted statute that allows request even if there is pending litigation

The Zoning Commission of Mercer County violated the Open Records Act by not turning over copies of requested records in a timely manner.

On Aug. 25, 2016, Attorney General Andy Beshear issued the opinion, In re: Jeffery Schumacher/Mercer County Joint Planning and Zoning Commission, 16-ORD-176.

Schumacher on June 8 requested records involving applications of building permits or variances in the past five years, not including ones given to him in a previous request.

The day after the request, the commission asked for a three-week period to compile and go through over 10,000 records that likely would be applicable to the request.

Not having received the records by July 11, Schumacher contacted the commission about the delay. It replied the following day, stating that because of a pending appeal by Schumacher’s client against another agency of the county, the correspondence was being directed to the Planning Commission attorney, David Patrick.

Schumacher appealed to Beshear’s office.

In the commission’s response, Patrick argued the entire request is exempt under KRS 61.878(1), because Schumacher represents a client in a court appeal against a Mercer County agency, and the request was related to that case.

Beshear ruled the commission misread that statute. The request was not barred through the Open Records process because the records could be obtained through the discovery process of litigation.

The attorney general reiterated that litigation and the discovery process do not relieve a public agency of its duties under the Open Records Act. The law allows the agency to deny an Open Records request only if the documents would be protected from discovery as well.

The attorney general also found the agency did not comply with the timely response of the records, as it did not fulfill the requested extension of three weeks, which constituted a violation of the Open Record Act.

Louisville police correctly withheld documents that were federally exempt from disclosure

The Louisville Metro Police Department correctly denied an Open Records request about firearms trace summary data.

On Aug. 25, 2016, Attorney General Andy Beshear issued an opinion, In re: Insider Louisville/Louisville Metro Police Department, 16-ORD-177.

Insider Louisville staff writer Joke Sonka requested a copy of firearm trace summary data from the police department for the homicides from a firearm in 2015.

The department responded to the request in a timely manner and advised Sonka that those reports are prepared by the U.S. Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives. It also said the reports were “anti-terrorism protective measures” within the meaning of KRS 61.878(1)(m)1.

The department also said that releasing those reports could threaten public safety because the sensitive information was only known to law enforcement.

On July 15, editor Sarah Kelley appealed the denial to Beshear’s office. She challenged the records being classified as “anti-terrorism protective measures” and how it would make the public vulnerable.

The police department responded with a detailed explanation. It stated that information generated by the National Tracking Center, which tracks firearms, was for exclusive use by law enforcement agencies.

It also noted that the department had to enter into a Memorandum of Understanding with ATF not to share any tracking center information with third parties.

The police department argued disclosure was prohibited under federal law and therefore exempt under KRS 61.878(1)(k).

Beshear ruled the data requested was exempt under federal law and affirmed the denial of the request on those grounds.