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Ex-candidate threatens suit over e-mails

A former write-in candidate for Urban County Council says he is being forced to sue the city to get public records that he says should have been given to him a month ago.

Randy Tobia, who was a write-in candidate for District 2 council in the November general election, requested all of current District 2 Councilman Tom Blues' city e-mails on Sept. 22. The city denied the request, saying it was too broad.

But the Attorney General's office, in an Oct. 23 opinion, said the city violated the Open Records Act when it denied the request. "Although Mr. Tobia's request was broad in scope," the opinion stated, "the council failed to demonstrate the existence of an unreasonable burden in producing the requested records."

The city was given 30 days to appeal the decision. It has yet to do so.

Susan Straub, a spokeswoman for Mayor Jim Newberry, declined to comment on the dustup over Tobia's request, saying that the city does not comment on lawsuits or "threatened" legal action.

Tobia went to city hall on Tuesday — after the 30 calendar days were up — to get his request for Blues' e-mails.

After some back-and-forth, Tobia said he got a phone call from Logan Askew, head of the legal department for the Lexington-Fayette Urban County government, Tuesday night.

Askew told Tobia that the city was not going to turn over the e-mails he had requested, Tobia said.

Askew and others at the city directed Tobia to a letter that he had received from the city law department after the Attorney General's opinion was released.

That letter, dated Oct. 30 and written by Keith Horn, a lawyer with the city, outlined why the city thought the request was too broad. The letter said it would take one city employee working eight hours a day for 41 days to compile his original request, and therefore the request was too difficult for the city to fill.

Tobia says the city can write him dozens of letters, but they are wasting their time.

"Their job was to appeal the Attorney General's opinion to the court," Tobia said. "They didn't do that. Now I'm going to have to go to court, hire an attorney, which could cost anywhere between $5,000 and $7,000."

Jon Fleischaker, a Louisville lawyer who specializes in the Open Records Act, said that once the attorney general issues an opinion, the city has to appeal that decision to the Fayette Circuit Court.

Because the city didn't appeal, Tobia is now entitled to the records, he said.

"All he has to do is go to the court, file a simple complaint and show that the attorney general ruled against the city," Fleischaker said. Tobia also can ask that the city pay for his attorney fees if the documents were "willfully withheld" and ask that the city be fined $25 a day for each day it failed to file the request.

Whether the city would be fined would be up to the judge. If the judge were to side with Tobia and fine the city from the day the request was due, that fine could be more than $1,000.

Tobia said he plans to file a complaint with the Fayette Circuit Court sometime after Thanksgiving.

"I don't know why they are wasting everyone's time," Tobia said. "I think they figured the election was over, he's not going to come back and want this stuff. But I'm entitled to those records."

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