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TV station prevails in dispute over public records

MURRAY – The end to a long-standing dispute between Paducah television station WPSD-TV and Murray State University over public records is in sight after Calloway Circuit Special Judge John Atkins issued his summary judgment Friday, ruling the university improperly redacted records it produced in response to open records requests submitted by the station, in violation of the Kentucky Open Records Act (KORA).  

Atkins, who reviewed both the original and redacted records before ruling, confirmed WPSD’s suspicions that the university “misused or misapplied” attorney-client privilege, personal privacy and preliminary records exemptions to redact the requested records; furthermore, he agreed with WPSD’s assertion that MSU’s application of broad categorical exemptions was contrary to the law.

“Judge Atkins issued a clear and unmistakable order that MSU used ‘a near categorical redaction scheme,’ his words, at odds with the law to withhold information the people had a right to know,” said WPSD-TV News Director Perry Boxx in a statement. “This victory for open government is good news at a time when the legislature continues to try to chop away at open records law. Open government laws are fruit of the First Amendment. They are the legal mechanisms by which journalists fulfill our role in helping perfect and preserve democracy. … We look forward to a review of all of the documents in question.”

MSU also provided a statement in response to the ruling: “We respect the court’s decision as we maintain our commitment toward academic excellence, student success and thoughtful public service in our west Kentucky region, the Commonwealth and beyond.”

The lawsuit stems from two open records requests (ORR) Boxx submitted to MSU in the fall of 2022, the first of which was submitted on Oct. 20. That two-part request sought records related to WKMS-FM, MSU’s NPR-affiliate radio station, going back to March 2022. 

Part “A” requested communications between former Circuit Judge James (Jamie) Jameson, former WKMS Station Manager Chad Lampe* and MSU administrators, including President Robert (Bob) Jackson, related to an ORR WKMS submitted to the Administrative Office of the Courts for surveillance footage of the judge walking in the courthouse after hours in his underwear. Part “B” requested communications between nine other university employees about “WKMS News.”

Three days earlier, WPSD reporters were present as Lampe was called to the stand on day one of the final hearing in misconduct proceedings against Jameson brought by the Kentucky Judicial Conduct Commission (JCC). Among the seven charges against the judge was a claim that Jameson attempted to pressure Lampe to kill any potential stories related to WKMS’ ORR by contacting Jackson about the request and later informing Lampe that Jackson “was not happy” about it. 

While Lampe’s testimony centered around Jameson, it also suggested that tensions were high between university administrators and the radio station at the time and for reasons beyond the conversations with the judge. 

For example, when asked if he had received any punishment over the exchanges with Jameson, Lampe carefully chose his words, saying, “There was no direct punishment to me, but the public radio station had received changes in their budgetary allocation as you would see lawmakers contact university officials. … I can say that the station – not necessarily me, but the station – could receive some negative blow back from the administration.”

Ultimately, the JCC found Jameson guilty on all charges and removed him from office. 

MSU responded to Boxx’s ORR on Nov. 3, and in it, invoked the First Amendment to withhold records related to WKMS.

“(T)here is a competing interest as to the freedom of the press,” penned MSU General Counsel Robert Miller in the university’s response. “Permitting the public to engage in fishing expeditions by searching the files of journalists and/or agency of the press, undermines and dissuades the press from fulfilling its Constitutionally protected freedom.”

The university did produce 31 heavily-redacted records in response to part A, claiming attorney-client privilege and KORA’s preliminary records and personal privacy exemptions for the redactions, but denied part B, calling it unduly burdensome, both for lacking specificity and being too cumbersome. 

WPSD formally appealed MSU’s partial denial of the October ORR to the Kentucky Office of the Attorney General (OAG) two weeks later and also challenged the redactions. In the end, the OAG largely sided with the television station on many of its complaints and rejected MSU’s use of the First Amendment to withhold records related to WKMS. 

Boxx submitted his second ORR on Nov. 16. It was significantly broader in scope, covering six subjects and seeking records as far back as April 2020. By the end of December, MSU produced over 800 pages of, again, heavily-redacted records in response to the November request, citing attorney-client privilege, preliminary records and personal privacy exemptions. 

Following the release of the OAG’s opinion in February 2023, MSU produced more records that were responsive to the October request. But WPSD continued to contest the propriety of many of the redactions. 

In March 2023, WPSD filed suit against MSU in Calloway Circuit Court “to compel disclosure of public documents related to MSU’s attempts to interfere with reporting by WKMS,” requesting an injunction ordering the university to produce the records responsive to both of Boxx’s ORRs in their entirety and for sanctions against MSU for willfully violating KORA.

Beyond the initial filings, there was little traction in the case until last November, when WPSD filed its motion for summary judgment, which is a request for the court to enter a ruling based on the pleadings filed in a case along with exhibits or affidavits without going to trial.

First Amendment attorney Michael Abate, WPSD’s lead counsel, argued in his motion that “a cursory review” of MSU’s redactions shows willful misapplication of the exemptions permissible under KORA and asserting the conclusion that the university’s intention was “to withhold information it would rather not see the light of day.” 

In response, MSU’s lead counsel Alina Klimkina characterized the television station’s lawsuit against the university as an attempt to “harass and unduly burden (MSU), and this Court, in hopes of generating a story that does not exist.” 

Abate doubled-down on the willfulness argument in WPSD’s reply, accusing MSU of employing a “strategy of withholding public records until their obviously inadequate denials are challenged through litigation (that) turns the Act’s presumption of disclosure on its head and defies the ‘basic policy’ adopted by the General Assembly that ‘free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed.’”

The parties convened on Jan. 24 for the summary judgment hearing. To expediate the process, Atkins suggested narrowing the scope of the dispute from eight subjects across two ORRs to only part A in the initial October request.  

“The record and the pleadings reflect the contact that was had by President Jackson with WKMS – it was alluded to in the pleadings and was part of the evidence in Judge Jameson’s proceedings that led to his dismissal from the bench,” Atkins said. “I think those records, in light of the background information, show that something exists, and I think it’s relevant to the problem in WPSD’s complaint.”

WPSD’s co-counsel William (Rick) Adams maintained the station was entitled to all of the records it requested. Both Adams and Klimkina advised the fastest way to bring resolution in the matter was for Atkins to examine the records in camera. Atkins agreed.  

Three weeks later, Atkins, based on his in camera examination of the records “that comprise the subject matter of this litigation” as well as his consideration of “the arguments of counsel, the evidence presented, the pleadings, exhibits and relevant precedents cited in our Commonwealth’s lengthy Open Records Act jurisprudence,” ruled in favor of WPSD. 

He ordered MSU to “comply without unreasonable delay with the only redactions tolerated by this Order being ones that concern purely personal or private information such as phone numbers and other personal descriptors which have nothing to do with this litigation.”

He also granted WPSD’s request to file a motion for attorneys’ fees, costs and statutory penalties. Under KORA, judges may impose statutory penalties if records were “willfully withheld,” 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 ordered by a lower court. 

The intent behind KORA “is served not only by the limited reading of exceptions to such a rule … but also by liberal reading of those provisions aimed at the meaningful punishment of those who willfully obfuscate the public’s ability to examine non-exempt records,” Judge Irv Maze wrote for the majority in the 2016 opinion. 

WPSD’s motion identified 21 records – 15 from the initial October request and six from the November request, four of which have been withheld – which Atkins already adjudicated as improperly redacted. That could translate to a maximum penalty in excess of $245,000 plus attorneys’ fees. 

“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, who also represented the Courier Journal in the landmark case against CHFS, wrote in an email last November. 

Any sanctions against MSU will be imposed by way of a separate order, provided WPSD’s attorneys file a motion requesting penalties and fees before the Feb. 26 deadline.

*Editor’s note: Chad Lampe now serves on the Sentinel’s Board of Directors. This story was written and published without input or review from the board.  

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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