Today, the Kentucky Open Government Coalition submitted a letter in support of HB 132, "an act relating to legal actions concerning the exercise of a person's constitutional rights," sponsored by Rep. Nima Kulkarni (D-Louisville).
https://apps.legislature.ky.gov/record/21rs/hb132.html
The Coalition has written about Rep. Kulkarni's Anti-SLAPP (strategic lawsuit against public participation) bill on several occasions. 32 state have enacted Anti-SLAPP laws. These laws enjoy broad bipartisan support.
https://www.facebook.com/419650175248377/posts/584082758805117/?d=n
https://www.facebook.com/1846598708/posts/10215045065200506/?d=n
But the uptick in the number of punitive and harassing lawsuits against open records requesters — aimed at intimidation and silencing opposition — confirms the need for enactment of an Anti-SLAPP law in Kentucky.
https://cases.justia.com/kentucky/court-of-appeals/2020-2019-ca-000152-…
We are hopeful for passage of HB 132 in the 2021 Regular Session of the Kentucky General Assembly.
The full text of our letter of support follows:
February 19, 2021
Kentucky Open Government Coalition
612 S. Main St., Suite 203
Hopkinsville, KY 42250
Representative Nima Kulkarni
702 Capital Avenue
Annex Room 429E
Frankfort, KY 40601
Re: Letter of Support for HB 132, "An act relating to legal actions concerning the exercise of a person's constitutional rights"
Dear Rep. Kulkarni:
The Kentucky Open Government Coalition submits this letter in support of HB 132, "An act relating to legal actions concerning the exercise of a person's constitutional rights."
Our citizen-based coalition was formed in 2019 for the dual purpose of advancing Kentuckians' understanding of their rights under the Commonwealth's open government laws and equipping Kentuckians with the knowledge that enables them to preserve those rights.
Here, and across the country, the public's rights are under attack.
With increasing frequency, governmental agencies engage in the "democratically dangerous" practice of suing open records requesters for simply exercising their statutory right to file open records requests in legal actions characterized as Strategic Lawsuits Against Public Participation. While observers note that SLAPP cases date back at least 27 years, there has been a significant uptick in cases in the past decade.
HB 132 would do much to stem that "democratically dangerous" tide by facilitating prompt resolution of Strategic Lawsuits Against Public Participation.
Examples of SLAPP include a 2014 lawsuit by the City of Billings, Montana against a newspaper that requested landfill records and a 2017 lawsuit by Michigan State University against ESPN after the network requested police reports related to sexual assault investigations.
In the past few weeks, a reporter and a publisher have been sued by governmental agencies.
In Louisiana, Attorney General Jeff Landry sued Advocate reporter Andrea Gallo on February 5 following her request for records relating to an investigation of one of his ranking staff members. In Colorado, Ouray County officials sued Plaindealer co-publisher Erin McIntyre, also on February 5. McIntyre requested records relating to disciplinary measures imposed on the county's public health director and emergency manager for working too many hours during the pandemic.
Closer to home, in 2016 the University of Kentucky sued its student newspaper, The Kernel, and the newspapers' student editors when the newspaper requested records relating to a faculty member who was permitted to exit the university under a favorable separation agreement after he was investigated for sexually harassing students. This case is widely viewed as a Strategic Lawsuit Against Public Participation.
And a thinly veiled "open records" lawsuit seeking compensatory and punitive damages against a local critic and frequent open records requester prompted the Kentucky Court of Appeals to issue a strongly worded admonition to that agency, the City of Taylorsville Ethics Commission, reminding public officials:
"The Open Records Act does not provide a remedy to any government entity to seek civil damages for the publication of a document, even one exempt under theOpen Records Act. To put the matter a different way, the government can use the Open Records Act as a shield; it cannot use it as a sword."
City of Taylorsville Ethics Commission v. Lawrence Trageser, (Ky. App. 2020) (Emphasis added.)
As Jonathan Peters, press freedom correspondent at Columbia Journalism Review, recently observed:
"Our democracy's foundation is the consent of the governed, implemented through popular participation in public affairs. The governed give consent through the electoral process and exercise of the franchise, and they participate in discussions about matters of public concern. Actions against [public records] requesters often arise out of information-gathering and expressive activities related to public issues, such as sexual harassment investigations, school enrollments, and candidates for sheriff.
"The right to speak is a corollary of the right to obtain information, and by suing requesters who are trying to learn about their government, the government is discouraging public participation in its activities and the discharge of political duties."
The Kentucky Open Government Coalition shares these beliefs and therefore strongly endorses HB 132 as the best hope of discouraging, if not eliminating, Strategic Lawsuits Against Public Participation that have no other goal than to silence members of the public and the media who exercise statutory rights to secure access to public records and to engage in meaningful popular participation in public affairs, a foundational principle in our democracy.
Respectfully,
/-S-/
Amye Bensenhaver
Retired Assistant Attorney General
Co-Founder, Kentucky Open Government Coalition
