LOUISVILLE, Ky., (WDRB) – In July 2017, Spencer Scharff asked for correspondence between Gov. Matt Bevin’s office and the White House under Kentucky’s open records law.
Instead of getting emails or letters, Scharff’s query landed him in a courtroom – sued by the very agency he sought information from.
And it’s not an uncommon response.
Curious about what the University of Louisville relied on when deciding to withdraw the men's basketball team from postseason play in 2016, Dr. Peter Hasselbacher, a former professor, filed an open records request with the school.
That same year, a Spencer County man requested records of a Kentucky State Police investigation into one of its own officers.
Both were sued by the respective agencies and have been tied up in court for much of the last two years.
All of these lawsuits came after the state’s referee in open records disputes, the Kentucky Attorney General’s office, had sided with the citizens requesting the documents.
By law, the suits name the person who filed the records request and generally ask judges to overrule the attorney general’s decision.
The lawsuits, according to freedom-of-information advocates, can be a calculated deterrent to people seeking information from powerful government agencies. Legal action can delay the release of records for months or years and force citizens to spend thousands on attorney fees to preserve the chance to get access to information.
Hasselbacher’s case lingered for more than two years, required him to find an attorney and left him with doubts that Kentucky’s open records law is accessible to its citizens.
“Based on my experience, when they (an agency) don’t want to release information, they can make it very difficult, almost impossible,” he said in an interview last week. “Somebody who is not a major newspaper or media outlet is up against it if they are trying to get records.”
The Associated Press reported last year that public agencies across the country are increasingly filing lawsuits against citizens seeking public records that may be embarrassing or legally sensitive.
Under Kentucky’s open records law, if an agency denies a request for records – be it from a school system, law enforcement agency or city council, for example – a person can appeal to the state attorney general’s office, which determines what ought to be released.
However, even if the attorney general orders records to be made public, the agency has 30 days in which to file a lawsuit against the citizen or media entity that won the ruling.
This came as a surprise to Hasselbacher, who won the attorney general ruling and then found himself in quick need of legal advice after U of L sued him.
“It’s not abundantly clear in the law, so there is no way for a citizen to know he is exposed to a potential lawsuit in the event he receives a favorable opinion from the attorney general,” said Amye Bensenhaver, a former assistant attorney general and open records advocate. “And unless you can afford to hire an attorney, your options are so limited.”
After the attorney general’s office found that U of L’s one-sentence denial to Hasselbacher was unacceptable and ordered the university to look more thoroughly for records, the school sued Hasselbacher, asking a judge to throw out the ruling. Among other claims, the university argued that a third party, consultant Chuck Smrt, had the records.
Hasselbacher, whose case was heavily publicized in the media, was fortunate when the American Civil Liberties Union agreed to represent him free of charge.
Had that not happened, Hasselbacher said, “I would have folded.
“I would have pleaded for the suit to be dropped,” he said. “I could not have pursued it.”
This is exactly what some government agencies want, First Amendment experts say.
“What is happening more and more is agencies are not cooperating with the attorney general (opinions),” said Jon Fleischaker, the state’s premier First Amendment attorney and the lawyer representing Scharff, the Phoenix, Ariz.-man whom the Bevin administration sued.
“They are betting either the media representative or the private citizen won’t be able to afford to fight a lawsuit and will deep pocket them using taxpayer money.”
It hasn’t always worked this way, said Fleischaker, who helped write Kentucky’s Open Records law in 1976.
In fact, in some ways, the current law is an improvement.
From its inception, the Kentucky Open Records Act has required documents – and photographs, recordings, communication, maps and other information -- in possession of a public agency be made available to the public, barring some exemptions, such as ongoing investigations, violations of a person’s privacy and trade secrets, for example.
And if a public agency denies a request, the attorney general will review the decision at no cost. But when the law was created, the attorney general’s opinions had little weight, as there was no punishment if an agency simply decided to ignore the ruling, daring the requester to file a lawsuit, Fleischaker said.
In 1992, legislators amended the act, giving attorney general opinions the force of law and making the rulings legally binding if not appealed in court within 30 days. If the records are still not turned over, the person seeking them can take the decision to court where a judge can order the records be released without debate.
A judge can also fine an agency $25 a day for not turning over records and make them pay court costs and attorney fees if it’s found the agency willfully violated the law.
Last year, for example, a Franklin Circuit Court judge ordered Kentucky State Police to turn over information to a woman about her daughter’s 1995 disappearance and pay more than $25,000 in her legal bills for willful conduct. (KSP has appealed the ruling.)
And generally, Fleischaker said, most agencies have complied with the attorney general’s rulings over the decades. (Across the country, some states have commissions or committees that hear open record disputes while in others, citizens have no choice but to file a lawsuit if denied records.)
In recent years, however, Fleischaker said he has seen more agencies in Kentucky and across the country begin filing lawsuits against the media or citizens in what he believes is an effort to dissuade people from seeking records, “basically saying ‘you are going to have to pay to enforce this.’”
“Some have weaponized (the law) to discourage people from exercising their rights,” Fleischaker said.
“I know they have succeeded too.”
It should be noted, however, that agencies have won open records cases by filing these lawsuits, convincing judges the attorney general’s office was wrong in its decision.
In 2015, after the attorney general’s office ruled the University of Kentucky violated the open records act in withholding correspondence with a hospital, the school sued the requester, and a Fayette Circuit Court judge reversed the decision.
The attorney general’s office does not keep track of how often government agencies challenge their orders and sue requesters in court.
First Amendment Attorney Michael Abate, who also is representing Scharff in his open records lawsuit filed by Bevin’s administration, said there also has been an uptick in agencies not participating with the attorney general’s office, refusing to turn over the requested documents for the agency to review.
Last year, Western Kentucky University, the University of Kentucky and Kentucky State University all sued their school newspapers after the attorney general’s office ruled the schools must release records of sexual misconduct at the universities.
All three schools refused to let the attorney general’s office examine the documents confidentially to determine if they should be released. The universities claimed they were forbidden from turning over the records by a federal law that protects the privacy of students.
In the Scharff case, the attorney general’s office asked to confidentially review documents Bevin’s office had refused to turn over. (Bevin’s administration is arguing the documents protected by law from disclosure because they are “preliminary.”)
But the governor’s office refused, asserting that Attorney General Andy Beshear is “an adversary of the Governor both institutionally and politically,” according to court records. Beshear, a Democrat, is running for governor in 2019. Bevin, a Republican, has said he’ll run for reelection but has not yet filed.
The attorney general’s office concluded that the Bevin administration’s actions violated the open records act and sided with Scharff.
The governor’s lawsuit filed against Scharff is ongoing. Abate is asking a judge to find that Bevin’s office willfully violated the law and must pay Scharff’s attorney’s fees.
“If an agency is hell-bent on keeping something secret, they can just refuse to participate in the attorney general process,” Abate said. “To me that’s extremely troubling. (The open records law) is supposed to be user friendly, allowing attorney general review.”
In a statement, Beshear spokesman Terry Sebastian said his office has also noticed more and more agencies not cooperating by turning over records for review.
He said in recent years there has been “an attempt by more public agencies to avoid transparency and accountability by not allowing our office to see records, which is required under Kentucky law. Without a review by our office of these records, a bad actor could easily cheat the system by providing false or fraudulent reasons to withhold information.”
By refusing to participate, requesters must go to court without a comprehensive attorney general ruling on the issue, making it a more time-consuming, expensive legal process.
“This has led to an increase of lawsuits and agencies spending taxpayer dollars fighting a court battle rather than follow the law and turn documents over to our office so we can make an unbiased, legal finding,” Sebastian said.
And, since it can be difficult to prove an agency willfully violated the law, citizens can be on the hook for thousands of dollars in legal bills even if a judge sides with them.
“With the existing structure of our open records law in Kentucky, even if you win, you can still lose and be out of pocket all of this money,” Bensenhaver said. “The scales of justice are so unevenly weighted in these cases. The agencies have money, outside counsel. They let the cases languish in court. They hold all the cards. Private citizens and small media outlets are really at a disadvantage.”
In Hasselbacher’s case, a judge ruled the university had made a deliberate attempt to keep “embarrassing and damaging” information from the public and ordered the school to turn over the documents and pay his legal fees.
Hasselbacher said he believes U of L let the case languish in court, delayed releasing documents even after the judge’s order and still didn’t provide everything he requested.
“The system leaves the little guy like me out in the cold,” he said. “The results were very disappointing.”
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