Attorneys for The State Journal and the Franklin County Jailer and Franklin County Attorney appeared before "Franklin Circuit Judge Phillip Shepherd on October 27 to present arguments for and against The State Journal's motion for attorney's fees, costs, and penalties following the newspaper's recent open records victory.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23066

On September 2 Judge Shepherd affirmed The State Journal's right to an unredacted copy of an investigative report into complaints of sexual harassment in the Franklin County Jail that the Franklin County Attorney improperly characterized as a permanently exempt criminal investigation record.

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In so doing, he declared, " The taxpayers paid for this report. They have a right to review it in full."

Wednesday's oral arguments focused on whether the county intentionally withheld the unredacted report in violation of the open records law.

Opposing the award of fees, costs, and penalties, Franklin County Attorney Rick Sparks argued that the county properly relied on the attorney general's decision in its favor and against The State Journal. The decision, Sparks argued, effectively insulated the county from fees, costs, and penalties. Immediately after Judge Shepherd ruled against the county, Sparks added, an unredacted copy of the report was released to the newspaper.

Representing The State Journal, attorney Jeremy Rogers challenged Sparks' characterization of the effect of an attorney general's decision, especially where, as here, the county provided only incomplete information.

Rogers, a partner in the law firm of Dinsmore & Shohl, a co-director of the Kentucky Open Government Coalition, and a highly regarded open government advocate, noted that the Franklin Circuit Court awarded attorneys' fees, costs, and penalties in the child fatality open records litigation, despite an attorney general's decision favoring the Cabinet for Health and Family Services in that records access dispute, and that he was affirmed on appeal.

Judge Shepherd acknowledged that the public's right of access to the unredacted report was clearly defined in this appeal, but expressed reluctance to impose penalties given the attorney general's decision favoring the county.

(The author of this post took no umbrage at references to some "boneheaded" decisions issued by the attorney general in the past. These, in fact, are the decisions my colleagues and I regularly refused to sign.)

https://ag.ky.gov/Priorities/Government-Transparency/orom/2019/19ORD152…

Nevertheless, because the law provides for fee shifting when a citizen prevails in court, and because it is fundamentally unfair for a citizen who is forced to go to court to bear the costs, Judge Shepherd hinted that he was inclined to impose some attorney's fees but was unlikely to impose penalties.

In closing, Judge Shepherd asked the parties to attempt to reach an agreement on appropriate fees in the next week and report back to him. Because the legal issue is "clear cut," he explained, the public's interest would be disserved by protracted litigation over the sole issue of the appropriateness of attorney's fees he might impose.

Rogers and Sparks agreed to undertake settlement discussions, prompting Judge Shepherd to declare them, only half-facetiously, "models of civility."