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MSU response to WPSD's motion for attorneys fees, costs, and penalties

WPSD's February 16 victory over Murray State University in the long running open records lawsuit also granted WPSD's request for 10 days to submit its motion for attorneys' fees, costs and statutory penalties.……;

Christian Circuit Court Special Judge John Atkins' order granting the news station's November 2023 motion for summary judgment included "both injunctive relief ordering MSU to produce the requested public records at issue and a finding that MSU willfully defied the Open Records Act, entitling WPSD to an award of statutory fees and penalties."

"The Court 'adopted' WPSD’s arguments, finding MSU 'misused or misapplied the attorney client privilege, the personal privacy privilege, the preliminary records exemption' and implemented 'a near categorical redaction scheme at odds with existing law.'"

WPSD filed the open records lawsuit against Murray State in March 2023 after the university denied open records requests submitted by WPSD station manager Perry Boxx in the fall of 2022. 

Boxx requested records relating to interference by MSU President Robert "Bob" Jackson, and other administrators, in investigative reporting into state lawmakers and other public figures and institutions conducted by the university's public radio news station, WKMS.  

In its motion for attorneys' fees, costs, and penalties, WPSD noted:

"The Open Records Act allows for an individual who prevails against an agency in an Open Records Act case to 'be awarded costs, including reasonable attorney’s fees,' if 'the records were willfully withheld.' KRS 61.882(5). The Act grants the court discretion 'to award the person an amount not to exceed twenty-five dollars ($25) for each day that he was denied the right to inspect, or copy said public record.' KRS 61.882(5). Courts may award fees on a per-record, rather than per request, basis. See Cabinet for Health & Fam. Servs. v. Courier-Journal, Inc., 493 S.W.3d 375, 387 (Ky. App. 2016).

WPSD is entitled to reasonable attorney’s fees under the Open Records Act." 

On this basis, and as verified in an attached affidavit, WPSD asserted an entitlement to fees in the amount of $39,963.00 and $465.45 in case expenses (costs) "for a combined total of $40,428.45."

Additionally, WPSD requested an award of $374,850 in statutory penalties based on "the 105 improperly withheld and/or redacted records MSU maintained after WPSD prevailed in its OAG appeal, at $10 per improperly withheld and/or redacted record, multiplied by 357 days—the number of days elapsed between the filing of WPSD’s Complaint and the filing of this motion."

"MSU’s original sin was the gross over-redaction of these records at the outset of this case," WPSD asserted. "It had a years’ worth of opportunity to voluntarily remedy that error, but instead it forced WPSD to engage in drawn-out, expensive negotiations to obtain public records it should have received in 5 days. MSU’s slow-drip production was certainly done 'without plausible justification' and in 'conscious disregard' of WPSD’s rights under the Act."…;

Following a one hour closed session of its Board of Regents to discuss pending litigation, Murray State University on March 1 issued a press release in response to WPSD's motion for attorneys' fees, costs, and penalties through Board of Regents Chairman Leon Owens. Owens asserted that WPSD is not entitled to the fees and penalties under the Open Records Act: 

"The University has taken no actions in willful disregard of the law with respect to WPSD’s requests. As such, WPSD is not entitled to fees and penalties under the Act, let alone fees and penalties in the egregious amount sought.

“Despite its good faith belief about the applicability of three very narrow Open Records Act exemptions, which the University applied to a very limited number of records, the University promptly provided WPSD with revised records upon receipt of the Court’s Order.”

 “The University has fulfilled numerous requests for open records, in accordance with the Act and without dispute on a near-daily basis, and it takes its responsibility in this area very seriously,” Owens said. “After months of unnecessary, unjustified, protracted litigation and hundreds of hours spent producing thousands of pages of records at a tremendous cost to the University, administrators, faculty and staff look forward to returning all of their energy, efforts and resources to their students, and the amazing teaching and learning that occurs at Murray State University.”

A hearing on WPSD's motion is scheduled for March 28 at 1:30 pm.