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NOT TO BE PUBLISHED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 MCNEILL, 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 LouisvilleJefferson County Metro Government’s Supplemental Motion to Dismiss and the 

Courier-Journal’s Motion for Summary Judgment. 
-2-

Specifically, the Courier-Journal requests 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 school 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 appropriate 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 sexual 

abuse allegations against officers involved in the Explorer Program. LMPD failed 

to produce the requested documents because it claimed they no longer possessed

the records. Specifically, LMPD contended that it had transferred the records to 

the Federal Bureau of Investigation (“FBI”), which 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.

The Courier-Journal appealed LMPD’s failure to produce the 

requested records to the Office of the Attorney General (“OAG”). The OAG 

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

to approval of the task force supervisor and applicable law and FBI procedures.”1

Additionally, the OAG determined that LMPD had violated Kentucky Revised 

Statute (“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 to 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, after discovery commenced, Louisville 

Metro voluntarily moved to dismiss the action. The Courier-Journal responded by 

requesting the Jefferson Circuit Court retain jurisdiction to supervise Louisville 

Metro’s compliance with the OAG opinion. The Jefferson Circuit Court granted 

Louisville Metro’s motion and dismissed the action. 

Contemporaneously, the Courier-Journal 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

Id. at *5.

3

Id. at *9.
-4-

61.882(5). The Courier-Journal filed a motion for summary judgment seeking 

enforcement of the OAG’s opinion, while Louisville Metro filed a motion to 

dismiss. The circuit court held oral arguments on the pending dispositive motions.

Ultimately, the 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 Courier-Journal and Louisville Metro 

[were] obligated to strictly comply with the requirements of that decision.” 

Further, the circuit court found that the Courier-Journal could not support “a 

finding that the records were willfully withheld[,]” thus denying the CourierJournal’s request for attorney’s fees, costs, and statutory penalties. KRS 

61.882(5). 

Based on its analysis, the circuit court granted the Courier-Journal’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 statutory 

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 County, 302 S.W.2d 550, 552 

(Ky. 1957). Having considered the amicus brief, we have granted the JCAO’s

motion by separate Order 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 CourierJournal’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 or 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 omitted) (“We review the trial court’s factual findings for 

clear error, and issues concerning the construction of [the Act] we review de 
-6-

novo.”). Under “clear error” review, “[a] factual finding is not clearly erroneous 

... if it is supported by substantial evidence, 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 (internal 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, unfair, 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 circuit court 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 Family Services v. Courier-Journal, Inc., 493 S.W.3d 375, 383 (Ky. 

App. 2016). 

“A ‘moot case’ is one which seeks to get a judgment . . . 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 case, we are reviewing the circuit court’s factual 

determinations on the Courier-Journal’s motion for summary judgment. Because that 
-7-

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), if 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, in such an enforcement 

action, the 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 the breadth and scope of the 

OAG’s opinion. Contrary to the Courier-Journal’s argument, nothing in the 

OAG’s opinion held that the Courier-Journal was entitled to production of the total

Explorer investigation file. Rather, the 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 decision 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 Courier-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 the 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, the 

circuit court correctly determined that the parties were required to comply with the 

OAG’s opinion and that the custodian of records for 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 circuit court’s

determinations regarding factual allegations or legal conclusions constituted 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 penalties. The Kentucky 

Supreme Court has stated that the term “willful” under KRS 61.822(5) “connotes 
-9-

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, in Bowling v. Lexington-Fayette Urban 

County Government, 172 S.W.3d 333, 343-44 (Ky. 2005), the Kentucky Supreme 

Court stated 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 violation 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 has 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, the circuit court retains the discretion to decline 

to award attorney’s fees, costs, and penalties even if a party can prove willfulness.

ALL CONCUR.
-10-

BRIEFS FOR APPELLANT:

Jon L. Fleischaker

Michael P. Abate

Williams R. Adams

Louisville, Kentucky

BRIEF FOR APPELLEE:

Chris J. Gadansky

Louisville, Kentucky