Louisville Metro Government officials are refusing to disclose documentation that would show how public money is being spent during the COVID-19 pandemic.
The Kentucky Center for Investigative Reporting on March 31 requested all contracts, purchase orders and invoices recorded since March 6. In a response on Monday, city officials denied the request for documents that would shed light on government spending since Kentucky’s first coronavirus case, and Gov. Andy Beshear’s declaration of a state of emergency.
City officials said fulfilling the request for about three weeks of spending records would create an “unreasonable burden'' on the government agency.
“The staff necessary to respond to this request are also devoted to assisting in the city’s response to the COVID-19 pandemic; thus, it would be a burden not only to them, but also to the residents of Louisville Metro relying on Metro’s work if they were to respond to this request at this time,” the response stated.
Louisville Mayor Greg Fischer last week said city officials had spent about $3 million in response to the pandemic, which includes costs for personnel and personal protective equipment and an expanded meals program for seniors. Specific details about those costs, and other governmental spending during the pandemic however, remain unknown.
Michael Abate, a Louisville attorney who specializes in First Amendment issues, said the public has the right to know how funds are spent even during the pandemic.
“Times like this require more transparency, not less, in order for people to have confidence in government,” he said. “It’s completely inappropriate for the city to just deny an Open Records Request because of the pandemic.”
Under state law, government agencies are required to make public records available for inspection upon request. The law does provide some exemptions for records that include personal information or those that could expose the government to terrorism, among others.
Normally, agencies have three business days to respond to records requests. That doesn’t mean the agency is expected to produce the records in three days — just that the agency needs to say whether it will fulfill the request and, if it’s granted, estimate how long it will take.
State legislators last month passed a measure to extend the timeframe an agency has to respond to a request amid the pandemic to 10 days.
Abate, who has represented KyCIR and other media outlets on public record issues, said the extension is a reasonable amendment to the state’s Open Records Act, given the spreading pandemic. But, he stressed, the law still stands and public agencies must comply.
“They can’t ignore their duties under the law, and tell people they can govern in secret,” Abate said.
A spokesperson for Louisville Mayor Greg Fischer did not immediately respond to a request for comment.
Fischer has long touted the city’s commitment to transparency and garnered national acclaim in 2013 when he ordered “public information to be open by default.” But an online database of spending records is outdated, the most recent records listed available are from the 2018 fiscal year.
And as the pandemic continues, city officials have demanded questions about the response come in the form of a formal records request.
But in the response to KyCIR’s request for spending records, city officials said the Louisville Metro Government processes thousands of invoices each month and the staff needed to fulfill the request are working remotely.
“Thus making it even more difficult to comply with such a broad request,” the officials said.
But the city’s claim that fulfilling the request would create an unreasonable burden on the agency is “pretty flimsy,” said Amye Bensenhaver, the director of the Kentucky Open Government Coalition.
Bensenhaver, a former attorney with the Attorney General’s open records division, pointed to a 2017 case in which the requester asked a university for any public records that referenced her by name as an example of one that posed an unreasonable burden.
Bensenhaver said courts have upheld that a request for public records cannot be considered an unreasonable burden simply because it requires added time or work to fulfill.
“They have to show the burden by clear and convincing evidence,” she said. “There’s nothing specific why this particular request poses a challenge.”
Spending records are oftentimes simple requests to fulfill because they are kept electronically and require little redaction, Bensenhaver said.
Some delays in fulfilling requests and provided records are expected and government agencies do deserve a bit of leniency as they work amid the spreading pandemic, she said.
But she said the leniency ends when an agency “erects an impenetrable barrier” by not honoring a request.
Contact Jacob Ryan at jryan@kycir.org.
