Judge Orders Second Ky. Agency To Pay KyCIR’s Legal Fees

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The Finance and Administration Cabinet “willfully” violated the Open Records Act and must pay legal fees and penalties to the Kentucky Center for Investigative Reporting, a judge ruled Friday.

Franklin Circuit Judge Phillip J. Shepherd directed the cabinet to pay KyCIR more than $19,000 in fees and penalties.

The cabinet redacted the names of state employees accused of sexual harassment when the claim was later deemed to be unsubstantiated after an internal review. Shepherd said the cabinet incorrectly relied on previous Open Records Act rulings about private citizens, not state employees, to argue that those names should be protected.

Additionally, Shepherd said that the cabinet owed KyCIR fees and penalties for declining to provide the records in question to the Office of the Attorney General. The attorney general’s office requested to see the records after KyCIR appealed the agency’s response to an open records request.

Agencies are not required to provide the records to the Attorney General, and can instead proceed to court, as the cabinet did in this case. But Shepherd said that’s the kind of thing that factors into decisions about awarding fees and penalties if the cabinet loses the lawsuit.

Shepherd concurred with KyCIR’s argument that the “cabinet has intentionally subverted the authority of the OAG (and the rights of [KyCIR]) by pushing the matter to circuit court, and, as a result, [KyCIR] has incurred significant costs and expenses.”

In November 2017, KyCIR requested sexual harassment records from every state agency, and found wide variations in how different agencies handled complaints. Some agencies never substantiated a single complaint as sexual harassment, while others had terminated employees for similar complaints.

That variety of responses extended to interpretations of the Open Records Act as well. Identical requests to every agency yielded responses ranging from immediate compliance to lawsuits, like the one filed by the Finance and Administration Cabinet.

The Labor Cabinet also sued KyCIR over a similar redactions issue. In April, Shepherd ordered the Labor Cabinet to pay KyCIR more than $17,000.

Both the Labor Cabinet and the Finance and Administration Cabinet have appealed the ruling.

Contact Eleanor Klibanoff at eklibanoff@kycir.org or (502) 814.6544.