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The hidden costs of keeping secrets

By Jessica Paine | Nov. 21, 2023

MURRAY – The Kentucky Open Records Act (KORA) declares the “free and open examination of public records is in the public interest … even though such examination may cause inconvenience or embarrassment to public officials or others.”  

Initially passed in 1976, the act gives members of the public the right to inspect nonexempt public records, which are defined in KRS 61.870 as “all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.”

Public agencies include, but are not limited to, state or local government officers, departments, divisions, bureaus, boards, commissions, legislative boards and judicial agencies in addition to county and city governing bodies, councils, school district boards, special district boards and municipal corporations.

In order to inspect a public record, it must first be formally requested by submitting an open records request to the public agency. The Office of the Attorney General (OAG) provides a standardized form on its website that all public agencies are required to accept. As of June 2021, open records requests are limited to Kentucky residents and media outlets. 

After receiving a request, the public agency has five business days to respond by complying with the request or denying it. If an agency denies a request, in whole or in part, it must cite the specific exemption provided under KORA allowing the record to be withheld and a brief explanation of how it applies to the record.

When an agency denies a request or fails to respond in a timely manner, the requester may appeal to the OAG, but that office can only issue an opinion on whether the agency’s actions violated KORA and has no authority to penalize an agency for noncompliance. 

To compel an agency to comply with an open records request, the requester can file a lawsuit against the agency in circuit court where a judge can order it to comply; and if a judge finds records were “willfully withheld,” they may impose statutory penalties not to exceed $25 per day for each day the “right to inspect or copy said public record” was denied. 

A Kentucky Court of Appeals opinion published in 2016 established precedent for assessing penalties on KORA violations on a per-record, per-day basis in a case brought by the Louisville Courier Journal and the Lexington Herald-Leader against the Cabinet for Health and Family Services (CHFS) wherein it upheld a $756,000 fine imposed by Franklin Circuit Judge Phillip Shepherd.  

Penalties associated with open records violations are currently quite relevant in Calloway County as attorneys for Paducah television station WPSD-TV filed a motion for summary judgment last week in a lawsuit against Murray State University in Calloway Circuit Court over two open records requests the station submitted to the university last year. 

In October 2022, WPSD News Director Perry Boxx submitted an open records request to Murray State, seeking records going back to March 2022 of (A) communications between former Judge Jamie Jameson, university administrators and a former station manager of the university’s NPR-affiliate radio station WKMS, Chad Lampe, and (B) communications between another group of university employees about WKMS.

Days before the request was submitted, WPSD reporters were present as Lampe testified about some of those conversations during the final hearing in misconduct proceedings brought against Jameson by the Kentucky Judicial Conduct Commission. Lampe’s testimony, while predominantly centered around Jameson, suggested that tensions were high between university administrators and the radio station at the time.

In response to part A of the request, Murray State produced 31 heavily-redacted records on Nov. 3 and claimed the First Amendment, attorney-client privilege and KORA’s preliminary records and personal privacy exemptions as justification for the redactions. The university refused to conduct a search for the records requested in part B, calling that request “unduly burdensome,” which is permissible under KORA when the requester does not specifically describe the records they are requesting.

Two weeks later, WPSD submitted a second request, which covered a wide range of subjects and sought records as far back as April 2020. The next day, Nov. 17, WPSD filed a formal appeal with the OAG over the October request. The OAG sided with the television station on many of its complaints and unequivocally rejected MSU’s use of the First Amendment to withhold records related to WKMS. 

Following the release of the OAG’s opinion, MSU produced more records that were responsive to the October request, but WPSD still did not agree with many of the redactions. In March of this year, the station filed its lawsuit against the university to compel the production of records requested by Boxx in October and November last year. 

Over the past year, Murray State has produced thousands of pages of records, including as recently as Oct. 3, according to the motion; however, WPSD still disputes the redactions on 21 records – 15 from the initial October request and six from the November request, four of which have been withheld completely to date. Should the judge side with the television station regarding all 21 and award the maximum penalty, Murray State would be looking at more than $205,000 in penalties plus attorneys’ fees. 

In the motion, Louisville-based First Amendment attorney Michael Abate, WPSD’s lead counsel in the case, quotes Shepherd’s decision in another lawsuit against CHFS brought by the Todd County Standard over KORA violations wherein he asserts the term “willful” “connotes that the agency withheld requested records without plausible justification and with conscious disregard of the requester’s rights.” In that case, CHFS was required to pay the news outlet a little over $40,000 in penalties and fees. 

“As our motion explains, we believe the University has willfully violated the law in trying to hide documents from the public, and that a substantial fee and penalty sanction is appropriate under the statute,” Abate said in a statement provided to the Sentinel regarding the filing. 

Abate also represented the Courier Journal in the aforementioned landmark case against CHFS, which centered around open records requests submitted by the newspapers, seeking social workers’ case files related to fatalities or near fatalities of children resulting from abuse and neglect.

The case was initially filed in 2009, but that did not stop reporters from submitting requests; therefore, over the course of four years of litigation in Franklin Circuit Court, the scope of the case grew to cover requests for records in hundreds of fatal or near fatal child abuse cases, 140 cases from 2009 and 2010 alone. 

The disputed records largely focused on two cases. One was from 2009 involving a toddler in Wayne County who drank drain cleaner while his parents were staying in a trailer being used as a meth lab. The other involved a nine-year-old girl from Todd County who was beaten to death in 2011 by an older sibling, which the Courier Journal reported as being “particularly damaging” to CHFS. 

In December 2013, Shepherd ruled in favor of the newspapers, advising that the disclosure of records in cases where a child dies or is seriously injured from abuse or neglect is permissible under federal law and required under KORA. 

“The cabinet has intentionally continued to employ a wholesale blanket approach to withholding public records, despite such approach being prohibited by the Open Records Act and contrary to this court’s repeated orders,” Shepherd wrote of CHFS’ willful refusal to produce records. He also accused the agency of making a “mockery” of KORA, treating it as “an obstacle to be circumvented rather than a law mandating compliance.”

In February 2016, the Court of Appeals upheld Shepherd’s ruling, including the $756,000 in fines. In the majority opinion, Judge Irv Maze admonished the state for fostering a “culture of secrecy” and flagrantly disregarding the basic tenets of KORA. He wrote that punishment for such violations should be “meaningful” and noted, “Rigid adherence to this stark principle is the lifeblood of a law which rightly favors disclosure, fosters transparency and secures the public trust.”

The state appealed the ruling but only to contest the penalty amount. In April 2016, the parties reached an agreement whereby the state would not pursue its appeal to the Kentucky Supreme Court and would pay a $250,000 fine – $125,000 to each newspaper – and attorneys’ fees in the amount of $339,000 to the Courier Journal and $110,000 to the Herald-Leader. The respective presidents of both newspapers vowed to use the award money to advance the cause of government transparency, particularly regarding child welfare.

As for the Calloway case, a hearing on WPSD’s motion for summary judgment was originally set for tomorrow afternoon; however, the parties filed an agreed scheduling order this morning, canceling that hearing and giving Murray State until Dec. 11 to file its response to the motion; WPSD then has until Jan. 3 to file its reply to the university’s response. A hearing for summary judgment is scheduled for Jan. 24 at 2:30 p.m.  

Because a portion of the records sought by WPSD are related to communications with Jameson during his 2022 bid for reelection, current Calloway Circuit Judge Andrea Moore, who prevailed over Jameson in the 2022 general election, recused herself from the case. Christian Circuit Judge John Atkins was appointed as special judge. It is not clear in today’s filing whether the Jan. 24 hearing will be held in Calloway or at the Christian County Judicial Building in Hopkinsville, but it is worth noting that the now-canceled hearing tomorrow was supposed to take place in Hopkinsville.  

Editor’s note: Stories on this page were written without input or review from our Board of Directors

Sentinel Staff

Jessica Paine
I’m Jessica Paine, founder of The Murray Sentinel. You may know me from my time as a citizen journalist, running the Calloway Covid-19 Count page on Facebook, or you may be familiar with my more recent work for another local news outlet. Being that I’m “from here,” you may have known me since I was “knee-high to a grasshopper,” although you knew me as Jessica Jones. But whether you know me or not, I’m glad you found your way here.

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