RENDERED: APRIL 26, 2024; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 1073

- MR
COURIER

- JOURNAL, INC. APPELLANT

v. APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE MITCHELL PERRY, JUDGE ACTION NO. 20

- CI

- 007395

LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT, BY AND THROUGH THE LOUISVILLE METRO POLICE DEPARTMENT APPELLEE

OPINION AFFIRMING
**   **  ** BEFORE: GOODWINE, KAREM, AND M C NEILL, JUDGES. KAREM, JUDGE: The Courier

- Journal , Inc. appeals from the Jefferson Circuit Court’s August 10, 2022, order granting in part and denying in part Louisville

Jefferson County Metro Government’s Supplemental Motion to Dismiss and the Courier

- Journal’s Motion for Summary Judgment.- 2

- Specifically, the Courier

- Journal request s this Court to (1) order Louisville

- Jefferson County Metro Government (“ Louisville Metro”) to produce the entire investigation file regarding the Explorer Program, a mentorship and recruitment program for high scho ol students interested in law enforcement

careers ; (2) find that Louisville Metro Police Department (“LMPD”) willfully violated the Open Records Act (the “Act”); and (3) remand the case for the circuit court to oversee production and determine the appropri ate amount of statutory fees and penalties. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND This case arises out of an open records request (“ORR”) made by the Courier

- Journal for LMPD records relating to its internal investigation of sexu al abuse allegations against officers involved in the Explorer Program. LMPD failed to produce the requested documents because it claimed they no longer possess ed the records. Specifically, LMPD contended that it had transferred the records to the Federal Bu reau of Investigation ( “ FBI ” ) , w hich was also investigating the allegations against the officers pursuant to a Memorandum of Understanding (“MOU”) setting out the parameters of the joint investigatory task force.

T he Courier

- Journal appealed LMPD’s failure to produce the requested recor ds to the Office of the Attorney General (“ OAG ”)

. The OAG determined that “the MOU allows LMPD to access task force information, subject- 3

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to approval of the task force supervisor and applicable law and FBI procedures.” 1 Additionally , t he OAG determined that LMPD had violated K entucky R evised S tatute (“KRS”) 61.880(1) “for failing to search its own records prior to responding to the Courier

- Journal’s [ORR] .” Moreover , the OAG determined that LMPD had violated the Act “when it failed to review the MOU and investigation file [] and produce for inspection any nonexempt [responsive] public records.” 2 Finally, the OAG stated that “LMPD failed t o meet its burden of proof under KRS 61.880(2) (c) and support withholding the MOU” and “did not identify any statute, law, or regulation exempting the [MOU] from disclosure.” 3

Louisville Metro appealed the OAG ’s opinion to Jefferson Circuit Court under KRS 61.880(5)(a). However, a fter discovery commenced, Louisville
Metro voluntarily moved to dismiss the action. The C ourier

- J ournal responded by requesting the Jefferson Circuit Court retain jurisdiction to supervise Louisville Metro’s compliance with t he OAG opinion. The Jefferson Circuit Court granted Louisville Metro’s motion and dismissed the action.

Contemporaneously, the C ourier

- J ournal filed this action seeking enforcement of the OAG ’s opinion and attorney’s fees and penalties under KRS

1 In re: Jon Fleischaker/Louisville Metro Police Department , Ky. Op. Atty. Gen. 19

- ORD

- 198, 2019 WL 5663408 , at *4 (Oct. 24, 2019)

. 2 I d. at *5

.
3 I d. at *9

.- 4

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61.882 (5). T he C ourier

- J ournal filed a motion for summary judgment seeking enforcement of the OAG ’s opinion, while Louisville Metro filed a motion to dismiss. T he circuit court held oral arguments on the pending dispositive motions.

Ultimately, t he circuit court held that since Louisville Metro had voluntarily dismissed its appeal of the OAG’s decision, the decision was final and had the full effect of law. Thus, “[ b ] oth the C ourier

- J ournal and Louisville Metro [ were ] obligated to strictly comply with the requirements of that decision. ” Further, the circuit court found that the C ourier

- J ournal could not support “a finding that the records were willfully withheld [,] ” thus denying the Courier

Journal’s request for attorney’s fees, costs, and statut ory penalties. KRS 61.882(5). Based on its analysis , the circuit court granted the C ourier

- J ournal ’s motion for summary judgment regarding the enforcement of the OAG decision and denied its motion for summary judgment as to attorney’s fees and stat utory penalties

. The circuit court also granted Louisville Metro’s motion to dismiss regarding attorney’s fees and statutory penalties and denied its motion as to dismissal of the enforcement action. The Courier

- Journal now appeals from this order. We will discuss further facts below as necessary.- 5

- ANALYSIS 1. Amicus Brief As a preliminary matter, the Jefferson County Attorney’s Office ( “ JCAO ” ) has requested leave to file an amicus curiae brief under Kentucky Rule of Appellate Procedure (“ RAP ”) 34. The motion panel passed this matter to the merits panel for final adjudication.

Allowing an amicus curiae to participate “is a matter that lies within the discretion of the court.” Thompson v. Fayette C ou nty , 302 S.W.2d 550, 552 (Ky. 1957). Having considered the amicus brief , we have grant ed the JCAO’s motion by separate O rder issued this same date.

2. Standard of Review While the Courier

- Journal is appealing from the circuit court ’s partial grant of summary judgment in its favor, the issues in this case involve the Courier

Journal’s dispute with the circuit court’s factual findings. Indeed, the circuit court’s consideration of the Courier

- Journal’s enforcement request did not depend on analysis o r interpretation of the Act. Therefore, instead of a purely de novo review , we will proceed with a “clear error” review of the circuit court’s factual conclusions. City of Fort Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 849 (Ky. 2013) (citation omitt ed) (“ W e review the trial court’s factual findings for clear error, and issues concerning the construction of [the Act] we review de- 6

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novo .”). Under “ clear error ” review, “[a] factual finding is not clearly erroneous ... if it is supported by substantial evi dence, i.e. , supported by evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable persons.” Id

. at 854 ( i nternal quotation marks , citation, and brackets omitted)

.

In the context of a trial court denying and dismissing a claim for attorney’s fees and penalties under the Act, the standard of review is abuse of discretion. Id

. A circuit court’s decision is an abuse of discretion when it is “arbitrary, unreasonable, u nfair, or unsupported by sound legal principles.” Miller v. Eldridge , 146 S.W.3d 909, 914 (Ky. 2004) ( internal quotation marks and citation omitted). 3. Enforcement of the OAG Decision

The Courier

- Journal first argues that , because LMPD did not appeal the OAG’s opinion, the c ircuit c ourt erred in failing to clearly compel LMPD to produce the entire unredacted Explorer investigation file

. 4 Under the Act , KRS

4 Louisville Metro responds that it has produced all responsive records, rendering the issue moot. See Cabinet for Health and Fam ily Serv ices v. Courier

- J ournal , Inc. , 493 S.W.3d 375, 383 (Ky. App. 2016).

“ A ‘moot case’ is one which seeks to get a judgme nt

. . . upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.” Morgan v. Getter , 441 S.W.3d 94, 98

- 99 (Ky. 2014) ( quoting Benton v. Clay , 233 S.W. 1041, 1042 ( Ky. 1921)). In this ca se, we are reviewing the circuit court’s factual determination s on the Courier

- Journal’s motion for summary judgment. Because that- 7

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61.880 provides for review by the Kentucky Attorney General of a public agency ’ s refusal to provide records or to respond to an ORR

. Under KRS 61.880(5)( b ), i f a party fails to timely appeal, an OAG ’s “decision shall have the force and effect of law and shall be enforceable in the Circuit Court [

. ] ” Thus, i n such an enforcement action, th e circuit court does not reach the case’s merits under the Act but simply enforces the OAG ’ s opinion as written

.

In this case , the parties agree that the OAG decision is final and has full effect of law. However, they disagree regarding th e breadth and scope of the OAG’s opinion

. Contrary to the Courier

- Journal ’s argu ment, nothing in the OAG’s opinion held that the Courier

- Journal was enti tled to production of the total Explorer i nvestigation file

. Rather, t he circuit court’s order correctly summarized the issues as follows:

Since the appeal of [the OAG decision] has been voluntarily dismissed; it is now final and has full effect of law. Both the Courier

- Journal and Louisville Metro are obligated to strictly comply with the requirements of that decision. All this Court is empowered to do is enforce the attorney general’s opinion. Contrary to the Courier

- Journal’s assertion, the OAG deci sion does not explicitly grant access to the full investigative file

. Rather references in the decision are made to “responsive records .” This is not as narrow as Louisville Metro argues, but also does not necessarily encompass the entire file as the Cou rier

- Journal contends. Instead, it means what it says plainly on its face: Louisville Metro
determination is directly relevant to the relief sought by the Courier

- Journal, this matter is not moot

.- 8

- is required to produce all records responsive to the request that it has access to via the MOU

. (Emphasis added) ( citations omitted)

.

We agree with t he circuit court that, contrary to the Courier

- Journal’s assertion, the OAG’s decision does not explicitly grant access to the full investigative file. Rather, the decision referenced “responsive records.” Thus, in this case, the circuit court correctly granted the Courier

- Journal’s motion for summary judgment regarding the enforcement of the OAG’s decision. Further, t he circuit court correctly determined that the parties were required to comply with the OAG’s opinion and that the custodian of records fo r Louisville Metro was required to ensure compliance and produce responsive, non

- exempt records to which it has access to under the MOU to the Courier

- Journal. Thus, none of the c ircuit c ourt ’s determinations regarding factual allegations or legal conclusions constitute d clear

error , and we affirm

.

4. Attorney ’ s Fees , Costs, and Statutory Penalties The Courier

- Journal next contends that the circuit court abused its discretion when it failed to find LMPD willfully refused to comply with the Act and award the Courier

- Journal attorney’s fees, costs, and statutory penalties

. Under KRS 61.882 , there must be “a finding that the records were willfully withheld” to be entitled to attorney’s fees and statutory pe nalties. The Kentucky Supreme Court has stated that the term “willful ” under KRS 61.822(5) “ connotes- 9

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that the agency withheld requested records without plausible justification and with conscious disregard of the requester’s rights.” City of Fort Thomas , 406 S.W.3d at 854

. In this case, we agree with the circuit court that the Courier

- Journal has not met that standard. Specifically, i n Bowling v. Lexington

- Fayette Urban County Gov ernment , 172 S.W.3d 333 , 343

- 44 (Ky. 2005) , the Kentucky Supreme Court st ated that

[a] public agency’s mere refusal to furnish records based on a good faith claim of a statutory exemption, which is later determined to be incorrect, is insufficient to establish a willful violation of the Act. In other words, a technical violatio n of the Act is not enough; the existence of bad faith is required. The trial court’s decision on the issue of willfulness is a finding of fact and, as such, will not be disturbed unless clearly erroneous.
LMPD ha s acknowledged its confusion regarding the correct custodian of the records at the time. While such may constitute a “technical violation of the Act[,]” it does not equal bad faith. Id

. We discern no clear error or abuse of discretion.

Moreover, as LMPD notes in its brief, an award under KRS 61.822(5) is not mandatory. See KRS 61.822(5) (“[T]he court may in its discretion award

. . . [attorney’s fees, etc .].” Therefore, t he circuit court retains the discretion to decline to award attorney’s fees, costs, and penalties even if a party ca n prove willfulness.

ALL CONCUR

.- 10

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BRIEF S FOR APPELLANT: Jon L. Fleischaker Michael P. Abate Williams R. Adams Louisville, Kentucky BRIEF FOR APPELLEE: Chris J. Gadansky Louisville, Kentucky