On January 28, we reported on an increasingly common practice among public agencies that threatens the public’s right of access to investigative reports and analyses for which they, the public, pay. The same practice – we noted — has expanded employment opportunities for the legal community. From an open government perspective, this is unfortunate.
More and more, agencies are contracting with attorneys to conduct investigations into matters of public interest as diverse as prematurely returning disciplined teachers to the classroom and violations of campaign finance laws.
In some cases, agencies enter into the arrangements for the express purpose of avoiding the requirements of the Open Records Act. These agencies employ attorneys to investigate — or hire investigators — in order to shield the resulting report and analysis from public inspection based on the attorney-client privilege. Kentucky’s courts recognize the privilege as an exception to public inspection under certain circumstances.
In other cases, the agencies enter into the arrangement with the understanding that the resulting report and analysis will be released to the public when final action is taken or a decision is made to take no action. This, clearly, is the practice that comports with the spirit and letter of the Open Records Act.
On January 29, the Courier-Journal reported that the law firm retained by the University of Louisville in its breach of contract dispute with former athletic director Tom Jurich has hired a detective agency to “provide additional context, fill in blanks and presumably to dig for dirt on Jurich as he and the university head toward mediation and a potential court battle.”
Given the University’s past track record on open records compliance, we suspect it will not be inclined to waive the attorney-client privilege and release the law firm/investigator’s report at its conclusion. To do so would require a level of respect for the public’s right to know that the University has thus far sadly failed to demonstrate.