Friday, August 30, 2013

Appeals court upholds award of attorney fees to reporter, citing city's repeated 'false denials'

The Kentucky Court of Appeals ruled today that the City of Owensboro must pay the legal fees of a newspaper reporter to whom it refused to give copies of complaint forms about the police department's public-information officer.

James Mayse of the Messenger-Inquirer sought records involving Marian Cosgrove, who resigned her job in November 2011 after coming under investigation by the department. He asked for any documents related to any complaint about her, and the city repeatedly said it had no records that would be responsive to his requests.

Mayse appealed to Attorney General Jack Conway, whose office asked for and got the investigative files from the city. Conway ruled that the city must release the initial complaint forms in the file because they are not exempt from the state Open Records Act. The city appealed to Daviess Circuit Court, where Judge Jay Wethington ruled for Mayse. He said the city's denials were "willfully defiant" of the intent of the law and done in "bad faith," so the city should pay Mayse's legal fees.

The city appealed, but gave Mayse the two Professional Standards Complaint Forms, so the appeals court dismissed that part of city's appeal. In granting Mayse attorney fees, the three-judge panel wrote, "The City's response, on three separate occasions, that no record responsive to Mayse's requests for complaints is problematic given the egis of the Open Records Act. In fact, there were two documents labeled "Professional Standards Complaint Forms" in Cosgrove's file from the inception of Mayse's requests. When the attorney general asked repeatedly about the existence of 'any other document,' the city also denied the existence of such documents to the OAG. The circuit court found the city's explanation that the information was incorrectly put on a complaint form and labeled 'internal' was not persuasive and defied the statutory intent of the Open Records Act. In essence, the City repeatedly made false denials of the existence of any complaints regarding Cosgrove." The decision is here.

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