A nonprofit publication of the Kentucky Center for Public Service Journalism

Amye Bensenhaver: Public agency compliance with open records law is step in right direction

Rep. Maria Sorolis, D-Louisville, filed HB 232 on January 9. The bill is aimed at promoting public agency compliance with Kentucky’s open records law by means of mandatory attorney fee-shifting in cases where a court finds that a public agency willfully withheld public records in violation of the law.

Kentucky’s current law provides for discretionary attorney fee-shifting. This means that in cases that proceed beyond the attorney general’s office, a court may, but is not required to, award an open records requester his or her attorney’s fees if the court finds that the agency willfully withheld the requested records.

The courts have stated that “’willful’ connotes that the agency withheld requested records without plausible justification and with conscious disregard of the requester’s rights.”

The courts look to factors that include “the extent of the agency’s wrongful withholding of records; the withholding’s egregiousness; harm to the requester as a result of the wrongful withholding, including the expense of litigating the matter; and the extent to which the request could be thought to serve an important public purpose.”

Sorolis’s proposed amendment alters current law by making the permissive award of attorney’s fees mandatory. If enacted, “may” will become “shall” in the statute governing circuit court jurisdiction in open records disputes. 

To be clear, a finding of “willful withholding,” under the factors identified above, would still be required. An award of attorney’s fees to the requester would not be automatic.

Experts generally agree that mandatory attorney fee-shifting, and not enhanced penalties, promotes agency compliance with public records laws.

In a 2019 analysis entitled “Bigger Stick, Better Compliance?” University of Arizona School of Journalism associate professor and National Freedom of Information Coalition president, David Cullier, wrote:

The findings . . .indicate that at least one legal provision could be essential for compliance. In particular, analysis revealed a significant correlation between compliance and mandatory attorney fee-shifting provisions. States that allow judges broad discretion, or impose high burdens of success for litigating requesters, demonstrate worst compliance than states that mandate judges to impose attorney fees. Certainly, agencies might not worry about a $1,000 fine or other slap on the wrist, but it appears they pay attention to paying tens if not hundreds of thousands of dollars to a successful plaintiff’s attorney, not to mention the bad publicity that would create for the agency.”

Cullier suggests that access advocates should focus their energies on enacting mandatory fee-shifting provisions in every state law.

Such provisions are not, however, without detractors whose opposition appears to be based on a perception that mandatory attorney’s fee-shifting discourages settlement of open records disputes.

Expert analysis suggests otherwise. 

The Kentucky Open Government Coalition supports any legislation aimed at improving the level of public agency compliance with our open records law. While the likelihood of passage of HB 232 is remote, it is a step in the right direction.

Amye Bensenhaver spent 25 years as an assistant attorney general in Frankfort and is an expert on open records and open meetings. Now out of state government, she writes about these issues. She has written more than 2000 legal opinions related to the state’s open records and open meetings laws. She is a founder of the Kentucky Open Government Coalition. If you have questions or comments about Kentucky’s open records laws, please email her at missbhaver@gmail.com/em>

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