Andrew Wimer
Andrew Wimer · May 27, 2022

LOUISVILLE, Ky.—A state court ruled that four Louisville Metro Council members willfully withheld public records in violation of Kentucky’s Open Records Act. The Institute for Justice (IJ) sued the four council members after they refused to turn over the public information in response to an open records request seeking transparency about a proposed ordinance targeting food trucks. The 2018 proposed ordinance came just months after Louisville Metro agreed to settle a constitutional challenge to a law that made it illegal for food trucks to vend within 150 feet of a restaurant.

The federal consent decree barred Louisville Metro from using government power to target food trucks and treat them like second-class citizens. IJ represented food truck owners in their 2017 legal challenge, and, after winning that case, sued the four council members for violating Kentucky’s open records law when attempting to stifle food trucks with more red tape.

“Public records belong to the public,” said IJ Managing Attorney Arif Panju. “The court’s ruling makes clear that when government officials willfully violate Kentucky’s open records law, there are consequences.”

The ink was barely dry on a federal court order that ended a legal battle between Louisville’s innovative food truck businesses and Louisville Metro when council members Brandon Coan, Barbara Sexton-Smith, Pat Mulvihill and Scott Reed introduced a new ordinance that would cripple the businesses. Concerned that the proposed ordinance would violate their victory in federal court and violate the consent decree, IJ sent an open records request in November 2018 seeking each council member’s emails and other documents discussing Louisville’s food trucks.

The council members responded to IJ’s open records request by noting that they had over 8,300 responsive documents, but they refused to make any of those records public. IJ appealed to the Kentucky Attorney General’s office, and in May 2019 the AG determined that “the Council members violated the Open Records Act” and mandated that they turn over the documents. The council members still refused to comply. The Institute for Justice was forced to sue for the records and only then did the four lawmakers attempt compliance, this time providing public records but redacting the names of all individuals they were corresponding with regarding the food truck ordinance.

In August 2019, IJ made these records available to the public. These records revealed that Metro Council member Barbara Sexton-Smith leaned on Metro officials on behalf of a restaurant owner to cripple food trucks. The council members still refused to remove the redactions and IJ asked the court to rule in its favor. Represented by April Wimberg at the Dentons law firm’s Louisville office, IJ won a judgment finding that the council members willfully violated the state’s open records law.

The council members have 30 days from the date of the court order to deliver new copies of the public information without redactions. The court will also award IJ its costs, attorneys’ fees and statutory penalties for each record illegally withheld in willful violation of Kentucky’s Open Records Act.