Presidential searches and police internal investigations: what public agencies must do, may do and should do to promote public trust
Kentucky’s open records and open meetings laws are, fundamentally, public access laws. They exist to ensure any person’s right to inspect and copy public records and to attend public meetings — regardless of the person’s identity or purpose — and to create a statutory mechanism for enforcing those rights.
When the laws were enacted in the seventies, lawmakers recognized that the public’s right to know must occasionally yield to a legitimate need for personal privacy or governmental confidentiality. They adopted several exceptions to the laws and prefaced them with language indicating that the exceptions are iron clad.
But one of the earliest rulings issued by the Kentucky attorney general — to whom lawmakers assigned the role of open records and open meetings dispute mediator — recognized that an exception to the laws is “a shield and not a shackle.” Because there is no penalty for affording the public access to a record or meeting that may be protected under one of the exceptions, a public agency may waive an exception if “going public” promotes the greater good.
The Kentucky Supreme Court confirmed this view in 2013 when it declared that lawmakers ”did not intend to mandate an iron rule of non-disclosure whenever an exemption applies.”
Two recent headlines in the Courier Journal suggest the challenges agencies face in responsibly exercising the discretion to waive an exception. While it’s easy enough to argue that agencies should always exercise that discretion in favor of public access, the analysis is rarely that simple.
Every exception is grounded in a specific policy designed to protect legitimate personal or governmental interests. Waiving the exception without careful consideration comes at a cost to those interests.
In an October 4 story, the Courier reported that Louisville Metro Police released records relating to an internal review of police conduct by its Professional Standards Unit following the Courier’s legal challenge to LMP’s partial denial of its open records request. The review grew out of concerns about how detectives “handled the investigation of a disabled teen who suffered two fractured legs after he was restrained by a teacher’s aide at a Jefferson County public school.”
LMP had released the records that initiated and concluded the investigative review — consisting of the letters notifying the detectives that a Professional Standards review was underway and letters advising them that the concerns were not sustained and that no disciplinary action would be taken – but denied the Courier access to the underlying Professional Standards investigative file.
Within a few days of the Courier’s appeal to the attorney general, LMP waived the exceptions and released the investigative file in its entirety.
LMP recognized that existing legal authority arguably supported its partial denial of the request. But LMP also recognized the substantial public interest in ensuring that it thoroughly and responsibly reviewed whether its detectives’ properly discharged their duties in investigating this very serious incident.
LMP concluded that the public’s interest far outweighed its arguable right to withhold the Professional Standards file. Here, “going public promotes the greater good.”
Also on October 4, the Courier reported on the University of Louisville’s decision to maintain the confidentiality of the applicants for its new president. The article did not identify the legal basis on which this decision was made, but the attorney general has recognized that the privacy exception to the Open Records Law authorizes agencies to withhold the identities of applicants for public employment while a search is proceeding and to continue to withhold the identities of unsuccessful applicants after a selection is made.
The attorney general’s position is based on the recognition that unsuccessful applicants may suffer reputational damage as a consequence of being deemed less qualified than the successful applicant or they may experience retaliation by their current employer when they are “outed” as applicants for another job. The position finds direct support in federal case law and indirect support in state case law.
The risk of an open search, some experts suggest, may be a less qualified applicant pool from which to select.
The dilemma for the University of Louisville in deciding whether to waive the privacy exception and disclose the applicants’ identities is whether it should risk limiting the qualified applicant pool by conducting an open search.
Given the crisis in leadership which the university faces, it is critical that it cast the widest possible net for the best qualified applicants. To exercise its discretion in favor of waiving the privacy exception may, on the one hand, impede this goal. Asserting the exception by withholding the identities of the applicants may, on the other hand, undermine the public’s confidence in the process as well as the incoming president. The question is, therefore, would “going public,” in this case, “promote the greater good?”