Mandatory attorney fee shifting in open records lawsuits is in the news following a Wisconsin Supreme Court opinion that is likely to “incentivize agencies to drag records requestors through costly, drawn-out legal battles.”

The Reporters Committee for Freedom of the Press expresses concern that the Wisconsin opinion “could have a dramatic impact on government transparency in the state, resulting in fewer requests for records and, as one dissenting justice put it, ‘a less informed electorate.’”

https://www.rcfp.org/fee-shifting-public-records/?fbclid=IwAR2fETxEr5wX…

“The question at the center of the case, Friends of Frame Park v. City of Waukesha, concerned the issue of attorneys’ fees — specifically, whether the government should be responsible for paying them when a records requestor’s lawsuit leads an agency to turn over public records that were wrongfully withheld, even if it does so voluntarily.

“In a 4-3 ruling, the Wisconsin Supreme Court held that a community group was not entitled to recover legal fees from the city of Waukesha under the Wisconsin Open Records Act after its lawsuit seeking access to a draft city contract ultimately prompted officials to make the document public, but without a court order forcing their hand.

“The July 6 decision sparked an immediate outcry among government transparency advocates, who worry that the ruling could incentivize agencies to drag records requestors through costly, drawn-out legal battles.”

In the current legislative environment, mandatory attorney fee shifting in Kentucky open records disputes is a pipe dream.

Some open government advocates have argued that such a fee shifting provision in Kentucky’s law would discourage settlement of open records litigation.

Under the open records law, discretion rests with the court to award attorneys fees “upon a finding that the records were willfully withheld.” 

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23066

(To be clear, a requester cannot be assessed the public agency’s attorneys fee if s/he does not prevail under Kentucky’s law.)

“‘Willful connotes that the agency withheld requested records without plausible justification and with conscious disregard of the requester's rights.”

“‘Willfulness’ and ‘bad faith’ are not necessarily synonymous,” the courts have opined.

https://caselaw.findlaw.com/ky-supreme-court/1643297.html

One thing is certain, Kentucky’s state and local agencies regularly erect questionable legal barriers to records access in the hope of discouraging requesters. If challenged, these agencies may release the records to avoid a legal challenge and an adverse ruling. 

Under these circumstances, the attorney general regularly “moots” the appeal — declining to address the legal issue that prompted the appeal — under a well-intentioned regulation that, sadly, has come to encourage these delaying tactics. He, of course, has no authority to impose penalties or award fees and costs. 

https://apps.legislature.ky.gov/law/kar/titles/040/001/030/

Deep pockets tip the scales of justice in the public agency’s favor. The agency’s primary deterrent is bad optics. Mandatory attorney fee shifting might restore the scale’s balance.