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April 1, 2009

Here's a tip (line)

Mayor’s office delivers tip line memos, but questions remain over exemption to records law

A spokesman for Louisville Mayor Jerry Abramson hand-delivered several memorandums from the city’s internal auditor that discussed an anonymous tip line proposal for Metro government, only days after LEO Weekly filed an appeal with the Kentucky attorney general’s office to view the documents.

However, the mayor’s office maintains that the documents were exempt from open records law because they are considered “preliminary” or drafts, a contention LEO had challenged. Upon receiving the memos and interoffice e-mails, which detail negotiations over an anonymous ethics tip line for Metro employees over the last five years, the newsweekly withdrew its appeal.

As early as April 2004, Louisville Metro Auditor Mike Norman began trying to convince officials of the benefits of adopting an anonymous 24/7 hotline for city employees to report fraud, abuse and unethical activities. Initial feedback from the six Metro departments that previewed a web demonstration of the reporting system was positive.

“There was agreement among these departments that this would be a beneficial service for Louisville Metro,” Norman wrote.

In a 2005 memorandum entitled “Hotline Proposal Conclusion,” however, Norman wrote that after discussions of abuse, open records policy and the burden of investigations with city officials were taken into account, “it was agreed that the proposal would not move forward.”

The city auditor continued to monitor the progress of tip lines in other cities, and two years later recommended Metro government tack an ethics line onto the existing 574-LMPD, which is used for reporting criminal activity. Again in August 2008, he finalized an audit of the city’s ethics program, and specifically recommended the adoption of a tip line.

Chad Carlton, a spokesman for the mayor, who personally delivered the documents to the newsweekly’s office Friday, says this demonstrates an ongoing conversation was happening over the past five years, and that the administration was not blocking the proposals — as Norman conveyed to LEO for a previous story — but attempting to reach a consensus before bringing the hotline to fruition.

Last week, two Metro Council members attempted to bypass the mayor’s office, filing an ordinance that would create such a hotline.

Although the Jefferson County attorney’s office issues an explanation when an open records request is denied, exempting public records from Kentucky’s wide-ranging law is a decision left to the mayor’s office.

“It’s ultimately their decision when claiming exemption or denying release of Metro records,” says Bill Patteson, a spokesman for County Attorney Mike O’Connell. “They can ask us for advice and we give them that, but the decision resides with them.”

Passed in 1976, the Kentucky Open Records Act provides citizens with broad access to public documents and meetings of government agencies. The law allows only 14 exemptions, and is widely viewed as progressive.

First Amendment attorney Jon Fleischaker, who wrote the law, says Kentucky’s is one of the better sunshine laws in the country because it offers few exemptions and broader definitions of what is public than most other states. In 2002, a study conducted by the Better Government Association ranked Kentucky’s sunshine law seventh-best in the country.

The problem with marking official memorandums as preliminary documents, Fleischaker says, is that once correspondence is sent within Metro government it should become part of a public conversation.

“If I’m writing a memorandum, that’s a final document. Simply marking it as such doesn’t make it a draft,” he says. “The problem is, how far are people going to spend money to fight it? That’s the problem.”

Louisville activist and blogger Ed Springston has made numerous open records requests to Metro government agencies, including the mayor’s office and Metro Council. He says there are several loopholes in the system regarding public documents and correspondence.

Last year, for instance, Springston uncovered a handful of e-mail messages between then-Metro Council President Jim King, D-10, and economic development director Bruce Traughber discussing Metro’s deal with the Cordish Cos., the Baltimore-based developer of Fourth Street Live, for the upcoming Center City development. At one point King suggested the conversation continue via his private e-mail account.

Springston calls that a prime example of public officials tip-toeing around open records law.

The Kentucky attorney general’s office provides a tutorial on the state’s sunshine law and outlines exemptions on its website. It also assists with the appeal process.

Allison Gardner Martin, a spokeswoman for Attorney General Jack Conway, says her office receives many open records requests, mostly from members of the public.

“We do try to make that information readily available because it’s not just members of the media who utilize it, but many public citizens,” Martin says.