Further validation of the importance of HB 232, providing for mandatory attorney fee shifting in open records cases where a court finds there "was a complete absence of a justiciable issue."

Sponsored by Rep. Maria Sorolis, D-Louisville, the bill is intended to promote public agency compliance with the open records law by discouraging frivolous litigation aimed at delaying public access to open records and exhausting requesters' resources.

In an amicus brief filed in December, the Reporters Committee for Freedom of the Press argued in support of the right of five San Diego news organizations to recover attorneys' fees in a case involving access to records of police misconduct.

The news organizations prevailed on the records access issue in March 2019, but the attorneys' fees issues remains unresolved in the California Court of Appeals.

In its brief, the Reporters Committee argues:

"Without certainty that those fees will be recovered in successful actions, the press and the public will be disincentivized from pursuing public records that have been wrongfully withheld."

Like Kentucky's law, the California public records law allows, but does not mandate, fee shifting. The Reporters Committee asserts that "mandatory fee shifting is critical to ensuring that the public's right of access to government records is properly enforced."

In support, the Reporters Committee observes that in states with mandatory fee-shifting provisions public agencies "tend to demonstrate better compliance with public records laws."

The brief underscores the importance of mandatory fee shifting to "financially strapped news organizations" which are less likely to fight open records battles in the courts "knowing they will be on the hook for costly attorneys' fees — even if they win."

The same is true of private citizen locked in open records disputes with recalcitrant public agencies.

Further, the Reporters Committee comments, public records litigation initiated by public agencies is often "intended to delay or deny public access to government information." Mandatory attorneys' fee shifting serves as one means of discouraging agencies from filing frivolous cases.

Failure to award attorneys' fees, the Reporters Committee concludes, "would put public records further out of reach for journalists and, accordingly, limit the public's ability to better understand, analyze, and critique actions of government, contrary to the purpose of" the California public records law as well as Kentucky's open records law.

Read the full Reporters Committee brief.