The Kentucky Press Association has intervened in a federal case that will decide the constitutionality of the “newspaper exception” to the Kentucky open records law’s commercial requester fee provision.
At stake is the question whether newspapers can be charged an inflated commercial requester fee for production of public records under the law.
Following a WDRB article in July 2019, the Kentucky Open Government Coalition reported on a lawsuit filed in federal district court by Zillow — a real estate data company headquartered in Seattle — against the Kentucky Department of Revenue and six property valuation administrators (PVAs).
https://www.facebook.com/419650175248377/posts/481767182370009/?d=n
The case was styled Zillow, Inc. v Daniel P. Bork, Commissioner of the
Kentucky Department of Revenue, et al., Case No. 3:19-cv-00049-GFVT-EBA. Thomas Miller was later substituted as defendant when he succeeded Bork as Commissioner of the department.
Zillow asked the court to declare that the commercial fee provisions of the open records law (KRS 61.874 and KRS 61.8745) and a commercial fee statute that relates specifically to PVAs (KRS 133.047) are unconstitutional.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23061
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23062
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=45011
Zillow also ask the court to “enjoin enforcement of those portions of the statutes that condition Zillow’s receipt of public records upon satisfying onerous requirements that Kentucky law does not impose upon other similarly situated public records requesters, and which impose penalties for failing to disclose a ‘commercial purpose.’”
On March 29, the Coalition reported on the federal district court’s March 24, 2022, opinion in that case:
“The United States District Court for the Eastern District of Kentucky has issued an opinion in Zillow, Inc. v. Thomas Miller, rejecting Zillow’s First Amendment challenge to the commercial/non-commercial purpose distinction contained in KRS 61.874(3) and (4), but permanently enjoining property valuation administrators from enforcing KRS 61.870(4)(b)(1) ‘in light of the unconstitutional restriction it places on the First Amendment rights of other commercial purpose requesters’ and declaring ‘the newspaper exception established in KRS § 61.870(4)(b)(1) unconstitutional under the First and Fourteenth Amendments.’
https://www.facebook.com/419650175248377/posts/1100084700538251/?d=n
Neither Zillow nor the government elected to appeal the district court’s opinion, but Zillow filed a motion to alter the court’s judgment on April 21, seeking attorney fees.
In our March 29 post, the Coalition explained:
“KRS 61.870(4)(b)(1) is a carve out from the definition of “commercial purpose” that is applied in determining reasonable copying fees under KRS 61.874(3) and (4).
“It states:
“Commercial purpose’ means the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.
(b) "Commercial purpose" shall not include:
1. Publication or related use of a public record by a newspaper or periodical[.]’
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51390
That statute has prohibited public agencies from imposing inflated “commercial requester” fees for production of records on the media since the open records law was amended in 1994 to recognize both noncommercial and commercial requests but to authorize, among other things, imposition of higher reproduction fees for commercial requesters.
The Coalition recognized the great importance of the case which the court resolved partly in favor of Zillow and partly in favor of the PVAs.
Not surprisingly, the Kentucky Press Association, joined by American City Business Journals (Louisville Business First), also recognized the importance of the case.
On March 29, the Jefferson County Property Valuation Administrator notified Louisville Business First that — based on the federal district court’s opinion on Zillow v Miller — PVAs must assess a commercial requester fee for public records to all newspaper requesters, including the records LBF had requested in early February.
Within days of learning about the court’s opinion in Zillow v Miller, the KPA filed an unopposed motion to intervene “for the purpose of appealing the [District] Court’s recent . . . judgment,” asserting that neither Zillow nor any of the defendants “are positioned to safeguard the media’s interest” and that the KPA and LBF, alone, “are positioned to consider—and vindicate—the press’ constitutional and statutory rights.”
It is the KPA’s position that under the district court’s ruling “public agencies may attempt to control the media’s use of [public] records through contracts they can ask commercial requesters to sign . . . [and] can charge newspapers far more for requesting the very same records they have always been able to obtain under the [open records law.]”
KPA asks that the court declare the newspaper exception to the commercial requester provisions of the law is constitutional or — if the exception is unconstitutional — declare that Zillow is exempt from the commercial requester provisions rather than treat newspapers as commercial requesters.
Clearly, the federal district court’s opinion casts a shadow over longstanding constitutional and statutory rights of access vested in Kentucky’s newspapers. It represents yet another grave threat to open government in Kentucky.
