'Better late than never': Louisville to release investigative files in employee misconduct

LOUISVILLE, Ky. — Louisville Metro Government announced Tuesday it will now release completed investigative files in cases of alleged employee misconduct, giving the public access to a plethora of records it has long withheld.

Notably, this should apply to disciplinary records for police officers connected to the fatal Louisville Metro Police shooting of Breonna Taylor in March 2020, which the department defended withholding as recently as Thursday.

Mayor Greg Fischer attributed the decision to a March opinion by the Kentucky Supreme Court in which the justices unanimously sided with the University of Kentucky's student newspaper over the school and affirmed the student journalists' right to access an investigation into sexual assault allegations against a professor.

“That may be uncomfortable for those employees, but this is an important step in enhancing transparency and building community trust,” Fischer said in an emailed statement.

First Amendment Attorney Jon Fleischaker, who represents The Courier Journal and other news outlets, said the move is "better late than never."

Fischer's announcement will bring the city into compliance with a law already on the books more than 40 years, he said.

Fleischaker would know, as he helped write the original Open Records Act in 1976.

"It's a terrific moment for not just media, but it should be a terrific moment for everybody who is interested in transparency and finding out why public agencies act as they do," Fleischaker said.

The Open Records Act gives the public — not just the news media — the right to request or review an array of government documents with only limited, specific exemptions. The law does not allow an agency "to consider the requester's identity or purpose in seeking access to public records," according to a guide from the Attorney General's Office, which handles open records appeals.

In recent weeks, The Courier Journal has reported on multiple instances of LMPD withholding or redacting large swaths of internal investigations into officer conduct as it relates to the Taylor case.

Since the policy change was announced Tuesday afternoon, The Courier Journal has requested LMPD provide documents it had previously withheld. They have not yet been turned over.

The department has maintained these documents were considered "preliminary records where the chief's findings were not adopted from those records," a characterization with which Fleischaker has vehemently disagreed.

Fleischaker pointed to two previous court opinions, in which he represented The Courier Journal and won the right to access records.

In a 1982 case between The Courier Journal and the Louisville Police Department, the Kentucky Court of Appeals made it clear an investigative file is no longer preliminary as soon as a disciplinary action is taken, whether it's to punish or clear the individual.

"Although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision," the court ruled. "Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent."

The Kentucky Supreme Court subsequently adopted that same position in a 1992 case between The Courier Journal and the University of Kentucky.

Related:Gov. Andy Beshear vetoes bill to withhold records of police, prosecutors, judges and others

In the Supreme Court ruling from last month, the justices cited this existing case law in chastising the University of Kentucky's failure to comply.

They noted at no point since 1992 has the General Assembly acted "to revise the statute to address this Court's interpretation of the preliminary document exceptions" and through each revision, the law's language on the issue "has remained exactly the same."

Fleischaker said LMPD has consistently fought this law — and consistently lost.

The most recent came in March, when Jefferson Circuit Judge Brian Edwards ruled in favor of WDRB News over LMPD on another disciplinary case in which the department claimed records could be withheld as preliminary.

Even if a chief's final decision "did not directly incorporate or reference the background investigation and records, that information led to his ultimate decision," Edwards wrote.

Michael Abate, also an attorney for The Courier Journal, said the recent Supreme Court opinion may have played a role in convincing the city to abandon its policy, but it did not change the city's obligations in any way.

"This statement should be seen for what it is: A tacit admission that four decades of flouting the Open Records law to hide internal investigation files is no longer a tenable policy," Abate said.

Reach Tessa Duvall at tduvall@courier-journal.com and 502-582-4059. Twitter: @TessaDuvall.