MURRAY – In a pleading filed yesterday in Calloway Circuit Court, Murray State University asked Special Judge John Atkins to reject the request for sanctions made by Paducah television station WPSD-TV after he ruled last month that the university violated the Kentucky Open Records Act (KORA), characterizing the request for over $415,000 in attorneys’ fees and statutory penalties as “gluttonous,” questioning the reasonableness of the fees and disputing how the penalty amount was calculated.
In the response, MSU’s co-counsel in the case, Suzanne Marino, disputed WPSD’s assertion that Atkins’ ruling included a finding that MSU willfully defied KORA. While MSU’s response does acknowledge “the Court held that MSU ‘misused or misapplied the attorney client privilege, the personal privacy privilege, the preliminary records exemption and (used) a near categorical redaction scheme ‘at odds with existing law’,” it maintains that Atkins made no findings on the issue of willfulness.
“The Court simply disagreed with the exemptions MSU invoked, in good faith, in its responses to WPSD’s Open Records requests,” the pleading states. “Much more is required under the Act to support an award of costs, fees, and penalties.”
MSU further claimed there is no evidence of willfulness in the case, noting that it “undertook efforts at every juncture of WPSD’s requests and this resulting dispute to provide WPSD with nonexempt records responsive to its requests.”
The issue of willfulness is key at this point in the case, which was initially filed last March over open records requests WPSD submitted in the fall of 2022. On Feb. 16, Atkins entered his summary judgment in favor of WPSD; and under KORA, the court may, at its discretion, award a requester attorneys’ fees and court costs in addition to statutory penalties “not to exceed twenty-five dollars ($25) for each day that he (or she) was denied the right to inspect or copy said public record” but only “upon a finding that the records were willfully withheld.”
Citing case law, Marino identified several factors that should be considered when determining whether an agency’s actions were willful – the extent of the agency’s withholding; the egregiousness of the withholding; if the withholding inflicted harm, including the costs of litigation, on the requester; and the extent to which the request serves an important public purpose – and concluded that none of them indicate that an award of penalties and fees would appropriate in the case.
“The Court should reject any characterization of MSU’s minor-at-issue redactions as ‘egregious’ and, instead, focus on the volume of records that MSU produced,” the response states, noting that, out of more 1,000 pages of records, the contested redactions upon which Atkins’ ruling was based constituted approximately 2% of the total.
“Further,” the pleading continues, “WPSD has not been harmed by MSU’s redactions; such a suggestion is ludicrous and disingenuous.”
In the complaint, WPSD produced unredacted versions of two records that reporters obtained “from another source” to illustrate why it questioned the propriety of MSU redactions. Drawing on that admission, MSU’s response concludes that it is not possible for WPSD to be harmed by “MSU’s redactions to emails which WPSD already possessed in an unredacted format.”
In WPSD’s motion for attorneys’ fees and statutory penalties, co-counsel Rick Adams noted that some of the unredacted records MSU produced after Atkins’ ruling revealed redactions of “clearly unexempt, benign material.” In the response, Marino argued that was itself evidence that the station was not harmed.
Regarding the requested $40,428.45 in attorneys’ fees and costs, MSU contested the rates charged by WPSD’s attorneys, lead counsel Michael Abate ($425) and Adams ($290), calling them unreasonable.
Citing the affidavit Abate submitted with the motion for fees wherein he stated he discounted his hourly rate “because of the nature of the case and the important public issues involved,” MSU’s response states that, “while respective rates of $425 and $290 per hour may represent top market rates in Kentucky’s largest cities, they certainly do not reflect discounted rates in a dispute between a local media publication and a public agency,” noting that KORA allows for an award of “reasonable attorney’s fees, not top market rates.”
Abate and Adams cited four cases in their motion where courts deemed their hourly rates to be reasonable. In total, Abate’s charges, at $3,400, comprised less than 10% of WPSD’s final bill, while Adams, who did not discount his rates, billed $36,293 for his time on the case.
The Sentinel contacted several attorneys in Murray to inquire about their hourly rates and found that most charge $250-$350 per hour; of the nine who responded, rates ranged from $180 to $350, and the average was $259 per hour.
The response calls out one $58-charge on the invoice submitted with WPSD’s motion for researching a seemingly unrelated topic. It also criticizes WPSD’s counsel for charging their client to review the records MSU has produced, saying that practice “cyclically increased” WPSD’s attorneys’ fees and that “every effort MSU made to supplement its production obviously resulted in more attorney’s fees to both parties.”
Going back to February 2023, when the Kentucky Office of the Attorney General (OAG) issued its opinion on the appeal WPSD filed against MSU, time billed for reviewing records accounts for approximately $6,000 of the $40,000-plus invoice.
With regard to WPSD’s request for statutory penalties in the amount of $374,850, the response questions both the number of records and the timeframe used in calculating the amount.
According to WPSD’s motion for fees, that amount is based on 105 records being withheld for 357 days – from March 6, 2023, the day the complaint was filed, until the filing of the motion for fees on March 1.
“The 105 records represents the initial production of over-redacted records,” Adams explained in an email after the motion for fees and penalties was filed. “That was when MSU’s ‘willful’ behavior started, they had no basis to redact any of those records and Judge Atkins confirmed that in his summary judgment order.
“After that initial production, we were able to negotiate with MSU to get them to remove most of the 105 redactions. By the time we filed our Motion for Summary Judgment, 21 records remained in dispute. Those negotiations were done at significant expense to WPSD and should never have occurred because we should have gotten the records at the outset. The removal of the redactions only confirmed that MSU never had any basis to withhold any of that information. The Open Records Act allows us to recover the fees and costs for obtaining all of the initially over-redacted records.”
MSU’s response takes note that the motion for summary judgment identified “about 20 redactions or withholdings with which WPSD took issue” and calls the court to “summarily reject WPSD’s confusing calculation that MSU improperly withheld … 105 records.”
According to the response, the records MSU “produced to the Court for its in camera review, comprised of each of the contested redactions listed in WPSD’s (motion), specifically contain 13 discrete email threads.” To that end, Marino argued that any potential penalty should be limited to 13 records.
“The Court has not determined – nor has WPSD argued – that each and every single redaction MSU made across its voluminous productions to WPSD was improper,” the response states. “Thus, the Court should reject WPSD’s contention that MSU should be sanctioned for every single record it redacted. … More critically, WPSD appears to count each listed redaction as covering a distinct ‘record’ for purposes of a penalty calculation.”
In addition to decreasing the number of records, MSU asserted that WPSD’s timeframe for the penalty should be reduced as well, taking issue with the penalty period extending beyond Feb. 20, which is the day MSU produced the unredacted records pursuant to Atkins’ order.
MSU also claimed that the duration of the litigation “was extended due to circumstances beyond MSU’s control,” citing a three-week period in June when “WPSD’s counsel had personal obligations” as an example. An email thread between counsel for the parties, which was filed as an exhibit with the response, shows that Adams took the time off for his wedding and honeymoon.
“It would be unjust for MSU to face monetary penalties for periods of time during which MSU was prepared to work – and was working – in good faith to resolve this litigation with WPSD,” the response states. “It would defy logic to penalize MSU for a period of nearly one year where, during the entirety of that year, MSU has repeatedly provided WPSD with the records it has requested.
“If the Court ultimately decides to impose penalties in this case, which it should not do, the Court should measure such penalties in a manner that accounts for the realities of this case and takes into consideration MSU’s good faith efforts to comply with WPSD’s requests at every juncture.”
WPSD News Director Perry Boxx told the Sentinel in an email this morning that he thinks it is very important for people to fully understand why WPSD believes substantial penalties are warranted in this case.
“The people responsible for this abuse of power are employed by the people of the Commonwealth,” Boxx wrote. “The documents they secreted away are the property of the people of the Commonwealth. Let’s all remember that. But someone hired them and is responsible, ultimately, for their actions. In this case, that someone, at least in terms of (MSU President) Bob Jackson, is the Board of Regents. The message to be sent is to them and to every public official contemplating willful violation of the laws of the Commonwealth that there are serious consequences. The Attorney General’s office said Jackson and his people violated the law. Now a veteran Circuit Judge said they not only violated the law they did it willfully. The judge used the word ‘scheme’ in his ruling.”
Boxx continued, “If this Board of Regents, political appointees all, chooses to continue to ignore the actions of this president and his administration then we are justified in saying each and every member is complicit. Clearly, the Regents seem determined to turn a blind eye. The Chairman of the Board, Leon Owens, issued a statement shortly after the judge’s ruling that not only arrogantly & disrespectfully brushed off Judge Atkins ruling, but directly contradicted the facts and Judge Atkins. Said Owens, ‘The University has taken no actions in willful disregard of the law with respect to WPSD’s request.’ That’s not what the judge said. They don’t seem to be taking Judge Atkins very seriously.”
Atkins will hear arguments on WPSD’s motion for fees at 1:30 p.m. on Thursday, March 28, at the Christian County Justice Center in Hopkinsville.
Editor’s note: This story was written without input or review from our Board of Directors
