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Metro Council’s fight against transparency could cost Louisville taxpayers $2 million

A Jefferson County Circuit Court judge ruled recently that Louisville Metro Council members willfully violated Kentucky’s Open Records Act by heavily redacting emails discussing pending regulations on food trucks. That potentially opens the city up to millions of dollars in damages.

The Institute for Justice, a public interest law firm based in Washington, D.C., originally brought the lawsuit against four council members and Louisville Metro Government in July 2019. They had filed an open records request the year before, but didn’t receive records until they sued. The group was seeking emails between council members and business owners and residents discussing the food truck ordinance.

According to court filings, attorneys for the Institute for Justice estimated that attorneys fees and potential fines under state law could cost the city more than $2 million. Arif Panju, a senior attorney at the Institute, said that the organization hopes the lawsuit will ensure Kentucky officials take open records laws seriously moving forward.

“Open records laws allow people to ensure their government is operating to protect their rights, not violate their rights,” Panju said in an interview with WFPL News. “It’s a benefit to the people and to the government to be transparent and open. Oftentimes, local governments lose sight of that.”

A ‘food truck battle’ turned ‘open government battle’

The officials involved in the open records lawsuit are two former Democratic Metro Council members, Barbara Sexton-Smith and Brandon Coan, as well as two current representatives, District 10 Democrat Pat Mulvihill and District 16 Republican Scott Reed.

The Institute for Justice also represented two food truck owners in a separate, successful federal lawsuit against the city in 2017. They argued a local ban on food trucks operating within 150 feet of a brick-and-mortar restaurant violated the owners’ constitutional rights.

Metro Council repealed the law after that federal lawsuit was filed and, in June 2018, a federal judge barred them from implementing similar restrictions and said officials had to treat food trucks like any other commercial vehicle.

The four Metro Council members named in the open records lawsuit introduced a new set of food truck regulations shortly after the federal ruling. Fearing the proposed ordinance violated the federal order that had just been handed down, the Institute for Justice filed its open records request. There has been no legal challenge to the content of that legislation, which eventually passed.

“It was a food truck battle that transformed into a transparency and open government battle,” Panju said.

Metro Council initially refused to make the email communications available, so the Institute appealed to the Kentucky Attorney General’s Office. It took the AG’s office nearly a year to release an opinion on the matter. In May 2019, it ruled that council members could not withhold the records under state law.

Even then, Panju said Louisville officials refused to release the communications, only doing so after the Institute filed a civil lawsuit. And when council members did finally release the emails, the names of individuals and business owners who were lobbying council members for specific rules were redacted. The Institute for Justice’s civil suit then became about whether or not those redactions were illegal.

Despite the heavy redactions, lawyers at the Institute for Justice said the content showed their initial fears were valid.

“We learned through the open records request that the council members, even while the [federal] case was being settled through a consent decree, were actively trying to figure out a way to stifle the food trucks downtown at the behest of business owners,” Panju said.

The Institute published all of the council members’ communications about the food truck ordinance on its website. They include emails from March 2018 between former District 4 Council Member Barbara Sexton Smith, who represented the downtown business district, and a group of self-described “business and real estate owners.”

The communications show one member of the group, whose name was redacted, threatened to “go to [the] media and name names” if concrete regulations weren’t put together by the following week. In a March 12 email, members of the group claimed they were losing business to food trucks.

“Losing sales is one thing,” one of the emails reads. “The allowance of a wild west situation with patently unfair rules that give food trucks an enormous advantage at our expense is another.”

The group offered seven specific regulations against food trucks that they wanted to see in future legislation, including increasing the price to rent an on-street parking space from $15 to $150. None of the suggestions made it into the final ordinance.

Sexton Smith responded to the email on March 16 saying she and other city officials had acted as soon as the issue was brought to their attention and she was ready to act again.

“I am prepared to do my part with the legislative process and/or modifications in how Metro administers permits,” she wrote. “I need to know exactly what the group wants.”

In an interview Wednesday, Sexton Smith called the Institute for Justice’s characterization of her emails “unfortunate” and said it “inflamed some emotions, unnecessarily.”

“As an elected official at the time, my obligation and responsibility was to all of the citizens of Louisville,” she said. “I was simply seeking fair and equitable access to our community for everyone. The whole intent was to help everybody thrive and succeed even in greater ways than they already were.”

Metro Council eventually approved a heavily amended version of the proposed new rules for food trucks and other mobile vendors in late 2019, more than a year after the four council members first proposed them.

Jefferson County judge rules the redactions are illegal

Last month, Jefferson County Circuit Court Judge Eric Haner ruled in favor of the Institute for Justice, saying there is well-established precedent that the public is entitled to learn the names of individual citizens who correspond with elected officials about legislation. Haner has given Metro Council until June 22 to provide unredacted versions of the emails, and the Institute will have the same amount of time to provide documentation of attorney’s fees and statutory damages.

Documents filed Tuesday show Panju put in about $50,000 worth of time into litigating the case on behalf of the Institute. Under state law, Louisville Metro could also be responsible for paying a fine of up to $25 per document for each day the open records were withheld. The Institute has estimated that there were 335 documents withheld for 267 days, although the final calculation will be up to Haner.

Josh Abner, a spokesperson for the Jefferson County Attorney’s Office, said the city does not comment on pending litigation. Asked whether the County Attorney planned to appeal Haner’s ruling, he said the office does not engage in hypotheticals.

Abner instead pointed to a June 2 filing detailing the County Attorney’s request that Haner reconsider his ruling. In that motion, Assistant County Attorney Natalie Johnson argued that “names can be, and regularly are, redacted under the [Open Records Act’s] personal privacy exemption.”

Amye Bensenhaver, co-founder and co-director of the Kentucky Open Government Coalition, said that argument may be true under the current interpretation of the privacy exemption by Republican Attorney General Daniel Cameron. But Bensenhaver, who worked in the AG’s office as an attorney for 25 years, said “long-standing precedent” is on the side of disclosing the names.

“If a rank-and-file citizen, an ordinary guy, petitions an elected representative to vote a certain way, that communication back and forth does not constitute communications with a private individual,” she said.

Bensenhaver added that cases such as this one show the importance of Kentucky’s open records and open meetings laws, which were created to make sure public servants are work for residents.

“We are talking about people who are exerting influence on the legislative process and that needs to be something that is subject to public scrutiny,” she said. “We need to know who those influencers are and to be able to trace the power base from which they exert that influence.”

A final judgment laying out how much Louisville Metro would have to pay is expected later this summer.

Roberto Roldan is the City Politics and Government Reporter for WFPL. Email Roberto at rroldan@lpm.org.