On Aug. 9, 2023, Jefferson County Public Schools experienced what is arguably one of the greatest crises in its 74-year history: A retooled transportation plan meant to bus more than 60,000 children to and from school collapsed on the first day of implementation. Children reportedly wet themselves on hot, hourslong bus rides. Parents called the police to report missing children when they weren’t home by dinner. Drivers dropped children off in unfamiliar neighborhoods.
But it’s unclear exactly how that disastrous day unfolded. That’s because JCPS is withholding communications between top officials on that day from LPM News and the public eye. Kentucky’s open records laws allow any member of the public to obtain most government records, including communications, and require the agency to respond within five days.
This week, attorneys for LPM filed a lawsuit in Jefferson County Circuit Court demanding JCPS turn over the records they believe the district has been illegally withholding since Aug. 10.
“The public absolutely has a right to know what JCPS was doing in the middle of the transportation meltdown when families and kids were left stranded and high and dry,” said Mike Abate, a First Amendment attorney representing LPM in the case.
“These are absolutely the public’s records. What the district is trying to do is play games to hide that from the public,” he added.
In a statement, JCPS spokesperson Carolyn Callahan said the district “does not believe [LPM’s complaint] has merit.”
“JCPS believes it has met its obligation under the Open Records Act and is prepared to defend its position through the litigation process,” she said.
What were JCPS officials texting about on the first day of school?
On Aug. 10, what should have been the second day of school, LPM requested “all communication and correspondence regarding student transportation sent or received by” five top current and former JCPS officials on Aug. 9.
After over a month of back-and-forth, JCPS attorney Amanda Herzog replied that JCPS didn’t have any records responsive to the request. When LPM challenged the district’s response, Herzog wrote back that the request “would not capture things like text messages sent on personal devices, phone calls, or in person conversations, which are generally how much of our staff communicates during real time, urgent situations.”
LPM attempted to avoid litigation. LPM and its attorneys informed Herzog multiple times that a recent appellate court decision required public agencies to hand over communications such as texts, even when they are held or transmitted on personal devices.
In response, Herzog argued that the appellate court’s decision did not apply to the communications of “paid employees” of public agencies — only to “government officers.”
Abate, who argued and won the case, called JCPS’ interpretation “flat wrong.”
“That is not a good-faith interpretation of that case law,” Abate said.
Abate said though the case involved appointed members of a commission, there is “nothing” in the text or the reasoning of the case that suggests it doesn’t apply to paid government employees.
The public’s right to view such records in the future may be at risk in the Kentucky Legislature. Abate has been active in opposing House Bill 509, which would create exemptions for public records stored on government officials’ personal phones or private email accounts.
Semantics
LPM is also suing over JCPS’ “hyper-technical parsing” of the language in the requests, which LPM believes JCPS attorneys used to avoid producing records.
For example, in response to a request for communications “among” specific people, JCPS attorneys claimed using the word “among” rather than “sent or received by” was the reason so few emails were returned.
LPM’s attorneys point back to a 2008 case in which the court ruled that an open records request “should not require the specificity and cunning of a carefully drawn set of requests, so as to outwit narrowing legalistic interpretations by the government.”
LPM’s attorneys also allege JCPS is inappropriately applying FERPA, or federal privacy protections for student records, to avoid producing communications about the busing debacle.
“FERPA likely has no application to the records requested by [LPM reporter Jess Clark],” LPM attorneys write in their complaint. “But even if it did, JCPS would be required to redact the exempted material and release the rest.”
AlphaRoute emails
The request for communications on Aug. 9 and Aug. 10 aren’t the only records JCPS has been reluctant to hand over on the busing crisis.
LPM also asked for email communications between certain JCPS officials and anyone with an email address at AlphaRoute — the tech company that helped design JCPS’ busing plan.
After nearly two months, JCPS returned a smattering of emails that LPM did not believe to be the full extent of correspondence between the district and a company it has been doing business with for several years.
Herzog said some records were withheld because they were “preliminary” drafts, notes and correspondence. State open records laws create some exemptions for “preliminary” materials, but attorneys for LPM say that exemption expires once a final policy decision is made.
“JCPS’ invocation of the preliminary records exemption rests on the improbable claim that JCPS had not yet made any policy decisions related to the transportation crisis by September 28, 2023—over a month after the crisis began,” the complaint reads.
As JCPS’ transportation system continues to limp along, the public still has very little understanding of what exactly went wrong with the AlphaRoute plan.
WAVE 3 News reported in December that JCPS had turned over emails between AlphaRoute employees and JCPS staff. Those emails showed AlphaRoute did not deliver its plan to JCPS until a month before the start of school. They also showed JCPS staff relied on AlphaRoute’s own justification for using a no-bid contract.
LPM believes many more questions could be answered by obtaining all requested communications between JCPS and AlphaRoute.
The lawsuit against JCPS is the second in under three months LPM has filed against a local government agency seeking public records. LPM filed suit against Louisville Metro Government in January over its failure to produce records related to a deadly shooting at Churchill Downs.
“For many years now … we’ve seen public officials and government entities moving toward a more defensive position toward the press,” LPM President and CEO Stephen George said.
“Fighting for public records to remain public and to be available, not just to news organizations, but to the people in this community … that’s a key part of what we do here at Louisville Public Media,” George added.
LPM is asking the court to force JCPS to turn over all the records sought. The news organization is also seeking attorneys’ fees and any other relief the court deems LPM entitled to.
