Question of the day: Can a public agency recover its costs and attorney's fees from a member of the media or the public in a legal action in the courts regarding access to public records?
Answer: A resounding "NO."
This article in The Seattle Times prompts today's question:
"[In an amended response,] the city of Seattle this week dropped its counterclaim [and request for attorney's fees] against The Seattle Times, which filed a lawsuit in June alleging the city mishandled reporters' requests for top officials' text messages during last summer's protests."
Apparently, Washington's public records law leaves the door ajar for a public agency to seek attorney's fees from a public records requester — whether a member of the media or the public — if the agency prevails in a lawsuit challenging the agency's handling of the records request.
To be clear: this is NOT permitted under Kentucky's open records law.
Our law leaves NO room for doubt:
"*Any person* who prevails against *any agency* in any action in the courts regarding a violation of KRS 61.870 to 61.884 may, upon a finding that the records were willfully withheld in violation of KRS 61.870 to 61.884, be awarded costs, including reasonable attorney's fees, incurred in connection with the legal action. If such person prevails in part, the court may in its discretion award him costs or an appropriate portion thereof. In addition, it shall be within the discretion of the court to award the person an amount not to exceed twenty-five dollars ($25) for each day that he was denied the right to inspect or copy said public record. Attorney's fees, costs, and awards under this subsection *shall be paid by the agency* that the court determines is responsible for the violation."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23066
The Kentucky Open Records Act makes NO provision for agency recovery of costs and attorney's fees from the public or media.
This is as it should be.
Were it otherwise, the chilling effect that would be cast on the public's exercise of statutory rights to hold government accountable is unimaginable. Especially where the playing cards are already unfairly stacked against the public and in favor of public agencies — whose deep pockets and desire to indefinitely delay final resolution give them a marked advantage.
What, then, is in the public's favor?
The clearly stated legislative recognition "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23058
And, in addition, the judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. An agency which would withhold records bears the burden of proving their exempt status."
https://law.justia.com/cases/kentucky/supreme-court/1992/90-sc-498-dg-1…
Scaling the walls to public access erected by public agencies is a little easier thanks to these well-established principles as well as the statute relating to the right of "any person who prevails against any agency in any action in the courts" regarding a violation of the Act to recover costs, attorney's fees, and sometimes penalties, "upon a finding that the records were willfully withheld" to be paid from agency coffers.
