WPSD suggests over $415K in sanctions against university for open records violations

By Jessica Paine | Feb. 27, 2024

MURRAY – On the heels of a summary judgment ruling in their favor, attorneys for Paducah television station WPSD-TV asked Calloway Circuit Special Judge John Atkins to require Murray State University to pay the station over $415,000 in penalties and fees for willfully violating the Kentucky Open Records Act (KORA) when it responded to open records requests submitted by the station in the fall of 2022.

WPSD-TV filed suit against Murray State University in Calloway Circuit Court on March 6, 2023.Photo byScreenshot of filing

WPSD’s lead counsel Michael Abate, a First Amendment attorney with Louisville firm Kaplan Johnson Abate & Bird, filed a motion for attorneys’ fees and statutory penalties Monday afternoon, asking the court for reimbursement of more than $40,000 in attorneys’ fees and court costs and to impose statutory penalties in the amount of $374,850 for withholding 105 records for 357 days.

“Although that is a substantial amount,” Abate writes of the proposed penalty in yesterday’s filing, “it is far less than the maximum allowed under the Act, which permits up to $25 per day, per record, from the moment MSU willfully denied WPSD’s request. KRS 61.882(5). Here, the maximum award allowed by the Act far exceeds $1 million dollars.”

The dispute between the parties, which has included an appeal to Kentucky Office of the Attorney General (OAG) in addition to the civil lawsuit, centers on two open records requests (ORR) WPSD submitted to MSU in October and November 2022, respectively, and the heavily-redacted documents the university produced in response to those requests.

WPSD filed suit against MSU in Calloway Circuit Court in March 2023 and, in November, filed a motion for summary judgment, asking the court to enter a ruling in the case based on pleadings, exhibits and affidavits submitted without going to trial. A hearing on the motion was held Jan. 24.

WPSD's counsel Rick Adams, left, and MSU's counsel Alina Klimkina stand before Special Judge John Atkins during the summary judgment hearingPhoto byJessica Paine/The Murray Sentinel

On Feb. 16, Atkins entered a succinct order that wholly adopted the arguments WPSD made in its motion wherein the station clearly held that MSU’s actions constituted a willful violation of KORA.

Atkins reviewed both the original and redacted records before ruling that the university “misused or misapplied” attorney-client privilege, personal privacy and preliminary records exemptions to redact the requested records; furthermore, he agreed with WPSD’s assertion that MSU’s application of broad categorical exemptions was “at odds with the law.”

He ordered the university to “comply without unreasonable delay with the only redactions tolerated by this Order being ones that concern purely personal or private information such as phone numbers and other personal descriptors which have nothing to do with this litigation,” which MSU did on Feb. 20, according to documents filed Monday.

The judge also granted WPSD’s request to file a motion for attorneys’ fees and statutory penalties, signaling his openness to sanctions against the university.

“MSU’s original sin was the gross over-redaction of these records at the outset of this case,” yesterday’s filing states. “It had a years’ worth of opportunity to voluntarily remedy that error, but instead it forced WPSD to engage in drawn-out, expensive negotiations to obtain public records it should have received in 5 days. MSU’s slow-drip production was certainly done ‘without plausible justification’ and in ‘conscious disregard’ of WPSD’s rights under the Act.”

WPSD’s attorneys submitted invoices for attorneys’ fees and court costs totaling $40,428.45 in addition to $374,850 in penalties. According to the pleading, that amount was determined using the rate of $10 per day for each of the 105 records improperly redacted and/or withheld for 357 days – from March 6, 2023, the day the lawsuit was filed, through Monday.

The motion cites a landmark open records case brought by the Louisville Courier Journal and the Lexington Herald-Leader against the Cabinet for Health and Family Services (CHFS) wherein the Kentucky Court of Appeals upheld a $756,000 sanction imposed by a lower court. Notably, $756,000 was not the maximum penalty that could have been assessed in that case either. Those fines – based on 140 records withheld for 540 days – were calculated at the rate of $10 per record, per day.

“MSU’s willful defiance of its transparency obligations deserves serious sanction from this Court,” the motion states. “… MSU’s initial categorical redaction and its year-long, stubborn refusal to abandon many of those redactions ‘reveals a culture of secrecy’ within MSU reflecting a ‘misguided belief that the Open Records Act is merely an ideal—a suggestion to be taken when it is convenient and flagrantly disregarded when it is not.’ Only ‘meaningful’ statutory penalties can pierce that culture of secrecy and put MSU on notice that its willful defiance of the Open Records Act will not be countenanced by Kentucky’s courts.”

WPSD’s motion is scheduled for hearing on Wednesday, March 6, at 9 a.m.

Neither WPSD-TV News Director Perry Boxx nor MSU Executive Director of Marketing and Communication Shawn Touney immediately responded to requests for comment on this story.