This op-ed appeared in the Lexington Herald-Leader and elsewhere across the state. It focuses on the protracted legal battle concerning Kentucky Medical Services Foundation's status under the open records laws and the "uneven odds" that private litigants often face when confronted with the overwhelming resources —both monetary and legal — of public agencies.

In this case, an individual litigant, Lachin Hatemi, and his attorney, Andre Regard, are battling a bank of attorneys, both public and private.

It is an increasing common problem and one that has been addressed in other jurisdictions by statutorily mandated fee-shifting provisions.

These state public records laws require a losing public agency to bear the legal expenses incurred by a requester who prevails in the courts.

A recent analysis of state laws —which we discussed in a May 28 post — identifies these provisions as the single strongest correlate to a robust public records law.

Kentucky's open records law allows — but does not require — courts to shift a successful requester's attorney's fees to a public agency if the court finds that the agency "willfully" withheld — meaning withheld "without plausible justification" — public records.

Those fees increase as a case proceeds through the appellate courts. In the protracted Cabinet for Health and Family Services litigation finally resolved in 2016, attorneys fees substantially exceeded $300,000.

This was in addition to $756,000 in penalties that the courts assessed against CHFS.

In the face of overwhelming legal authority, agencies would do well to remember that discretion is often the better part of valor.

Don't look for KMSF or UK to forego the appellate process in this case.