‘An affront to transparency’ Louisville’s open records backlog grows, hampers journalists
Despite promises made by Mayor Craig Greenberg to increase transparency and reduce backlogs in open records requests back in May, Louisville Metro's records backlog has gotten worse.
The tip started with a text message. A community organizer asked me to cover a balloon release for a man killed in a parking lot near Churchill Downs by someone wielding an AR-15.
Ordinarily I’m an environment reporter, but I was heavily involved in reporting on the protests over police killing Breonna Taylor and I’ve maintained ties with a handful of sources.
As local journalists, we’re responsible for earning, building and maintaining community trust. So I showed up. I spoke to the man’s grieving mother. Then I requested a copy of the case file from Louisville Metro Police and went to work after receiving it a week later.
As I reported the story, I soon realized there’s another key piece of video evidence that I needed: surveillance footage from the night of the shooting. So I made another request to the police department. This time, the city told me it would take up to six months to get the footage.
The footage, like the police case file, is a public record. And in Kentucky, government agencies are required by state law to provide access to public records upon request. But in Louisville, access to public records is plagued with delays, deficiencies and mismanagement.
Mayor Craig Greenberg said he was going to restructure the city’s open records department and improve transparency back in May. But it hasn’t happened yet. Open records backlogs have more than doubled in the last six months.
At the time, he said the city had 955 unfulfilled open records requests. By early December, the backlog had ballooned to more than 2,000 requests for records and nearly 1,400 requests for video records, according to records obtained by Louisville Public Media through an open records request.
In an interview with LPM, Greenberg said the city will hire five additional people to work in a new records department that oversees all requests. The positions were authorized as of October 1. As of early December, the city hired one of those positions, he said.
“The number of open records requests to our city government has exploded over the past couple of years,” Greenberg said. “For right now, this is a very manual, time intensive process that's responding to these open records requests.”
Experts and journalists alike say getting public records in Louisville is often a tedious process that takes significantly longer than what’s mandated in state law. The delays impede the public’s right to know what its government is doing, said Mike Abate, a first amendment lawyer with the local firm Kaplan, Johnson, Abate and Bird.
Abate, who works with LPM and other media outlets, said Louisville Metro “routinely blows through the timeframes in the open records law.”
“The city, and the police department, aided and abetted by the county attorney's office for decades, has willfully ignored those requirements,” he said.
Records on Time
State law requires government agencies to provide access to requested records within five business days, unless “a detailed explanation for the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.”
One reason for a delay, according to the law, is if the requested records are in “active use, storage, or not otherwise available.”
But Abate said city officials aren’t citing that as the reason for delays. Instead, he said the reason they give is that there isn’t sufficient staff to respond timely to records requests.
He said the city’s decision to impose months-long delays on record requests is “an affront to transparency.”
“And that’s just not acceptable,” he said.
Amye Bensenhaver, co-director of the Kentucky Open Government Coalition, said that open records law is designed to hold public officials accountable and timely responses are necessary to make that happen.
“The value of information is partly a function of time, that’s sort of an established principle of open government law,” Bensenhaver said. “Six months from now that video's going to have far less value than it does currently.”
Resources stretched thin
I first learned about the backlog while appealing my request for the surveillance footage to the Kentucky Attorney General, who can make legally binding decisions in disputes over open records. In a letter defending the city’s position, the Jefferson County Attorney’s Office said the city had a backlog of nearly 1,400 requests for video records alone.
They said the city currently employs four video technicians at LMPD responsible for all open records requests as well as video requests from Commonwealth Attorneys, County Attorneys and other officers.
While some requests can be closed in as little as 30 minutes, they said others can take up to a week. LMPD’s video technicians estimate it takes seven minutes to review each minute of footage, they said.
“Louisville Metro Government is currently informing requestors that it may take up to six months to provide the video records. Six months is not arbitrary- it’s based on experience,” said County Attorney Michael O’Connell as part of an LPM records appeal.
City officials have fulfilled more than 1,900 requests for LMPD videos this year, said Kevin Trager, a spokesman for Greenberg. The video team works a combined 25 hours of overtime each week to process them.
The Attorney General has until December 13 to make a decision in our open records appeal.
City resources vs. state law
In a decision from last year, Attorney General Daniel Cameron said it doesn’t matter that the city’s open records resources are stretched thin, not having enough resources to meet the law’s requirements is not an excuse.
“The General Assembly has required all public agencies, including Metro and its subordinate departments, to comply with the Act in the short timeframes provided therein. And Metro must comply with that legislative command,” the ruling states.
Right now, Abate said the city has a real problem on its hands. Between police-worn body cameras, digital record keeping and increased scrutiny of the police department, there are more records created, and requested than ever.
At the same time, the city hasn’t employed the personnel needed to review and process those records for compliance with the law.
Abate said it’s up to the mayor, the Metro Council and LMPD to ensure that there are enough employees to fulfill open records requests.
“We're not saying that the Greenberg administration created a problem like this. But it's, you know, they're the ones in charge, and they've got to fix it,” he said.
During my interview with Greenberg, the mayor said he’s hopeful that the backlog will be reduced once the positions are filled.
“We want to get this information out as quickly as possible,” he said. “If anyone is interested in joining our metro government open records office, we encourage you to apply, become part of the solution.”