In September, 2017, the Associated Press reported on an alarming trend in public agencies' assault on open government. The article identified several cases across the country in which public agencies had gone on the offensive by filing lawsuits against open records requesters rather than granting or denying their requests as state laws require.

The requesters, often private citizens with limited incomes, were forced to stand down or absorb the substantial cost of litigation.

One of the cases identified in the article involved the University of Kentucky's legal action against student journalists at The Kernel who, in 2016 successfully appealed the university's refusal to disclose investigative records relating to sexual harassment complaints against a professor. The Fayette Circuit Court reversed the attorney general's 2016 open records decision in January, 2018, The Kernel appealed and the case is pending in the Court of Appeals.

This is Kentucky's homegrown variant on a longstanding practice known as SLAPP, or "strategic lawsuit against public participation," an acronym coined in the 80's to describe public agency lawsuits aimed at intimidating agency critics by draining their financial resources.

In another Kentucky example of SLAPP, the City of Taylorsville demanded monetary damages from Lawrence Trageser, a local "watchdog" and frequent open records requester in a two pronged case. First, the city challenged the attorney general's open records decision determining that Taylorsville improperly denied Trageser's request for the written responses of three city commissioners to ethics complaints filed against them by the city clerk.

The second, and more menacing aspect of the case, involved the city's demand for damages from Trageser because he obtained a second public record—a memorandum written by the city clerk—by means other than an open records request. He was "negligent," the city theorized, because he "circumvented the legal procedure to inspect public records" in obtaining the memorandum which would otherwise "have been found to be exempt from production pursuant to KRS 61.878." The city offered no legal support for this argument.

The court resolved both issues in favor of Trageser and against the city.

With respect to the city's lawsuit, the court concluded that "the purpose of the Open Records Act is to provide 'any person' with the opportunity to obtain 'free and open examination of public records'" and not to provide "an avenue of attack against a person who did not use the Open Records Act to obtain a public record."

In the order entered by the court on December 12, the court stated that the city "wrongfully withheld public records from Trageser without a good faith basis or plausible justification." "Equally troubling," the order continued, "is the fact that [the city] also brought an unfounded claim for compensatory and punitive damages against Trageser in an apparent attempt at intimidation designed to dissuade him from further exercising his rights under the Open Records Act in this case and in future cases."

The court awarded the statutory maximum in penalties, as well as attorney's fees. Trageser received $16,500 in penalties, based on a $25 a day fine for the 660 days the records were willfully withheld. His attorney, Jeremy Rogers, receive $12,000 attorney's fees.

The City of Taylorsville has appealed the circuit court's opinion to the Kentucky Court of Appeals.