The Interim Joint Committee on Judiciary today heard testimony on a proposed anti-SLAPP — Strategic Lawsuit Against Public Participation — measure that would discourage punitive and harassing lawsuits intended to chill First Amendment rights.

Anti-SLAPP laws are currently on the books in 33 states laws.

Representative Nima Kulkarni (D-Louisville) introduced similar bills in past sessions, but has revised the bill to address concerns raised by trial attorneys and to reflect improvements under the Uniform Public Expressions Protection Act. Her proposed bill is co-sponsored by Representative Jason Nemes (R-Louisville).

Rep. Kulkarni noted that the proposed anti-SLAPP bill enjoys broad bipartisan support from groups as diverse as the ACLU, Americans for Progress, the Kentucky Press Association, the Bluegrass Institute for Public Policy Solutions, the Pegasus Institute, and the Kentucky Open Government Coalition.

In a five page statement, the Coalition expressed suppprt for the proposed anti-SLAPP measure "as a means of ensuring the robust exercise of rights established by the Commonwealth's open government laws. These laws are purposed to 'make transparent the operations of the state's agencies' in recognition of 'the public's right to know what its government is up to.' Lawson v. Office of the Attorney General, 415 S.W.3d 59,70 (Ky. 2013)."

We noted the alarming increase in "the 'democratically dangerous' phenomenon of public agencies filing Strategic Lawsuits Against Public Participation against open records requesters," focusing on how these lawsuits "frustrate the purpose and design of freedom-of-information laws" and "inhibit the open exchange of information and ideas about government affairs."

In support, we cited recent cases both outside and inside Kentucky.

Earlier this year, Louisiana Attorney General Jeff Landry's sued a reporter for her persistence in requesting records relating to allegations against a ranking member of the Louisiana AG's staff. Within the last two months, the City of Seattle's filed a counterclaim —seeking payment of the city's attorney's fees — in a suit filed by the Seattle Times involving access to the mayor's emails during last summer's civil unrest. These cases ended in defeat.

We identified other recent cases "closer to home."

In September 2020, a "cease and desist" demand was made on WPSD Local 6 News following its publication of a 103 page report prepared by Anderson Economic Group and obtained by WPSD from the City of Paducah through an open records request.

"In the September 3 letter to WPSD news director Perry Boxx, Anderson 'request[ed] that this report and all information used in the news story obtained from the report be removed from your website immediately because the document was not lawfully obtained in accordance with the Commonwealth's Open Records Act.' The news station rejected the demand, asserting that Anderson's 'effort to threaten legal action for reporting on a public record it obtained through a lawful open records request is completely meritless.'

"A similar threat was leveled against The State Journal in July, 2021, when a Louisville law firm representing an undisclosed client threatened legal action against the newspaper for anticipated publication of public records requested under the open records law relating to communications between the City of Frankfort and a local official 'regarding past personnel actions and claims of discrimination against the city.'

"Also in July, 2021, an attorney representing the Fish and Wildlife Resources Commission sent a letter to the appellant in a pending Franklin Circuit Court open meetings appeal, as well as a non-party, demanding that the appellant 'call this attack over' and 'urging' the appellant 'to consider an Agreed Order of Dismissal of the case,' indicating that if the appellant failed to do so, the attorney "will advise those individuals involved [presumably the commission members] of what rights they may have to pursue.' The appellant refused the demand, the non-party responded in kind, and the open meetings appeal is proceeding.

"In each of these cases," we explained, "a word to the wise was sufficient."

"But," we continued, "a three year legal battle that began with a legal action for compensatory and punitive damages filed by the City of Taylorsville Ethics Commission against a local critic and frequent open records requester -- in an apparent attempt to exhaust his resources and silence him -- culminated in a scathing Court of Appeals opinion in the requester's favor and an award of $30,950 in statutory penalties and $23,468 in legal fees.

"In City of Taylorsville Ethics Commission v. Lawrence Trageser, No. 2019-CA-000152 (Ky.App. 2020), the court sternly admonished the commission declaring, 'The ORA is a statute that provides one mechanism for members of the general public to obtain government records through an official and orderly channel. The ORA does not provide a remedy to the City or to any government entity to seek civil damages for the publication of a document, even one exempt under the ORA. To put the matter a different way, the government can use the ORA as a shield; it cannot use it as a sword. The circuit court correctly dismissed the City's claim against Trageser.'

https://law.justia.com/cases/kentucky/court-of-appeals/2020/2019-ca-000…

"But the Spencer Circuit Court may have said it best in a lengthy quotation that appears in the published Court of Appeals opinion: 'Equally troubling is the fact that the city brought an unfounded claim in this case for compensatory and punitive damages against Trageser in an apparent attempt at intimidation to dissuade him from further exercising his rights under the Open Records Act in this case and in future cases. This court finds this tactic by the City and its Ethics Commission to be in bad faith and designed to subvert the intent and purpose of the Open Records Act.'

"Had Kentucky enacted an anti-SLAPP law prior to the commencement of the Trageser case," we concluded, "this protracted litigation, along with its attendant costs, might have been avoided."

"It is for this reason that the Kentucky Open Government Coalition strongly supports passage of an anti-SLAPP bill in Kentucky. The uptick in the number of punitive and harassing lawsuits, or threatened lawsuits, against members of the public and the media exercising statutory rights established under our open government laws confirms the need for such a law to stem the tide of these 'democratically dangerous" lawsuits and facilitate their prompt resolution."

The full text of our letter of support is available here:

https://drive.google.com/file/d/1ibmGsr3eyTGEcCLeSdOwRFMR0KNO-AqK/view

As Rep. Kulkarni eloquently testified to the Interim Committee earlier today:

"These are civil lawsuits masquerading as normal tort lawsuits that are actually not intended to prevail on the merits and are instead intended to delay, chill, suppress or discourage free speech. SLAPP lawsuits essentially intend to take a matter of public concern or significance out of the public arena and into the courtroom which shifts the attention from the speech or activity that is being engaged in and towards a legal defense."

Let's hope 2022 is the year that Kentucky joins the majority of states in adopting an anti-SLAPP law aimed at discouraging meritless SLAPP suits as clearly defined in Rep. Kulkarni's bill.