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.

Ky. high court says police can't just dismiss records requests using prospective-action exemption

The Supreme Court of Kentucky ruled today that law enforcement records are subject to open-records requests even if there is a "prospective law enforcement action," and that to withhold records for that reason, a law-enforcement agency must prove that a premature release of the them would hurt its prospective action.

The state's highest court ruled in a case brought by The Kentucky Enquirer, which wants the investigative file about a murder to which the victim's widow pleaded guilty in 2009 but is now seeking a new trial, alleging she had ineffective counsel. The Gannett Co. newspaper, an edition of The Cincinnati Enquirer, has been seeking the file since the case concluded.

The ruling "is a big step forward for us," Kentucky Press Association counsel Jon Fleischaker told the newspaper organization, which supported the Enquirer's efforts. "The court handed down some guidelines for proof in an open-records case which will be very helpful to us, especially in cases like the pending action against the Cabinet for Health and Family Services. Finally, there is very useful language regarding the imposition of attorney’s fees and the circumstances under which the award of attorney’s fees is appropriate.  Those guidelines will be useful for all of us." For Fleischaker's note and a copy of the decision, click here.

The court "found that although the municipality’s response to The Enquirer request for records was inadequate, it has not been shown to have willfully violated the law, and so does not provide a basis for sanctions," Jim Hannah writes for the newspaper. "The Enquirer had asked that the municipality pay its legal bills in the case. Fort Thomas was ordered to make a good faith effort to identify those records responsive to The Enquirer’s request and either provide them to the newspaper or explain with why, under the law, they are exempt. A Campbell Circuit Court judge would then be asked to review what the city claimed was exempt to ensure the law was being followed." (Read more)

Sun gives police letter alleging schools' laxity about weapons, but honors request for anonymity

A newspaper in a Kentucky county that had one of the first mass school shootings gave police a letter it received from a student alleging lax enforcement of rules about weapons on campus, but refused to identify the student, who asked to remain anyonmous. The Paducah Sun gave the McCracken County Sheriff's Department a copy of the letter about Reidland High School on Monday "after a reporter called the department . . . although the name of the author was not included," the paper reported Tuesday in a non-bylined story.

Reidland High School

The story quoted from the letter: “Someone who sits in class with us, who has brought weapons twice ... has yet to be punished for anything.” It "does not mention the person’s name," the story says. "It adds that the person has plotted attack sites around the school area and asks why school administrators are afraid to enforce school rules. The letter does not contain any specific threats of violence, just the student’s observations."

After being told about the letter, police and school officials decided to close the school and the attached Reidland Middle School. “School will not be in session until the threat has been adequately investigated,” Sheriff Jon Hayden wrote on his department's Facebook page. The paper's story is here; the letter is here.

Reidland (A) and Heath (B) schools (Google map)

On Dec. 1, 1997, a student at a high school on the other side of Paducah fired on a group of students at a prayer meeting, killing three and injuring five. He pleaded guilty but mentally ill and was given life in prison with the possibility of parole in 25 years. "A federal appeals court panel is considering whether Heath High School gunman Michael Carneal should be allowed to take back his guilty plea and get a trial," Angela Hatton of WKMS in Murray reports.

The Wednesday, Dec. 19 Sun has a copy of the letter, a story about an unnamed teacher who says she prompted it, and a column from Editor Jim Paxton explaining the paper's handling of the matter: "Newspapers by statute in Kentucky have a right to protect the identity of their sources, just as law enforcement agencies do. Absent that ability, we would never be able to develop the type of information that is reported in today’s lead story about the school threat issue, information we believe most readers will agree sorely needs to see the light of day." Paxton said the paper asked the student's parents if he could speak to the sheriff's department if his confidentiality was protected. "The parents expressed reservations, noting their son is a juvenile. We advised investigators of the parents’ position, but said we would continue to try to broker a resolution that would allow investigators to speak to the student directly."

Paxton says a press release from the sheriff's department at 10:30 p.m. Monday "was at best disingenuous and at worst defamatory. The release was crafted in such a way as to make it appear that the newspaper had received a letter from an individual who had directly threatened the high school and we were refusing to tell authorities his name citing 'journalistic ethics.' The release didn’t say that specifically, but it was clearly intended to be interpreted that way, and it was." That release appeared to be the basis for a story by WPSD-TV, also owned by Paducah-based Paxton Media Group. The county school superintendent sent a similar message to school-district employees.

"The effect was as officials planned," Paxton writes. "People called to cancel subscriptions. Advertisers called threatening to pull out of our newspaper. Profane comments poured onto our Facebook page." And though the paper's First Amendment lawyer said it had an absolute right to withhold the student's name, "we continued working to broker a resolution, and later that morning, our source, his parents, and an adult employee of the school system who we learned was our source’s source agreed to meet here at the newspaper with Sheriff Hayden. While we were in the process of setting that meeting up, a sheriff’s detective showed up in our offices with grand jury subpoenas demanding that Executive Editor Duke Conover and yours truly appear in less than two hours before a grand jury along with the letter disclosing the identity of our source. (In what can only be described as a show of belligerence, the sheriff’s detective undertook to 'read' the subpoena to Conover in Conover’s office while Conover was engaged in a phone call. First, that’s hard to do, since subpoenas mostly have boxes and checkmarks on them. Second, legally, it has no effect. Subpoenas are simply supposed to be delivered, and sheriff’s deputies are well aware of that.)" Paxton, a lawyer, writes that the subpoenas were illegal and "purely an effort to intimidate a news organization. We doubt Kentucky’s attorney discipline board will smile on this exercise."

In the end, Paxton reports, "Our source and others familiar with this matter did meet in our offices with the sheriff, and as today’s lead story indicates, much was learned. Interestingly, some of what was learned was very unflattering to school administrators and others in the school system. Meanwhile, we as a newspaper remain puzzled by the scorched earth approach taken by local officials involved here." (Read more; subscription may be required)

Sheriff Hayden issued a press release Tuesday night saying that the alleged threat was a misinterpretation of two students' conversation about explosions in a video game, which had been investigated and cleared. "Had investigators been provided contact information sooner, this incident could have been cleared up much quicker," Hayden said.

Illinois' anti-eavesdropping law can't be used against those who record police, high court says

The U.S. Supreme Court has let stand an appellate-court ruling in Illinois that "The state's anti-eavesdropping law violates free-speech rights when used against people who tape law enforcement officers," the Chicago Tribune reports. "Opponents of the law say the right to record police is vital to guard against abuses." (Read more)

Judge tells Owensboro police to give newspaper records of probe into public information officer

Daviess Circuit Judge Joe Castlen ruled Monday that the Owensboro Police Department must give the Messenger-Inquirer newspaper records relating to the department's investigation of its former public information officer.

The judge "said the city must release two documents that say why the police department's Professional Standards Unit began two investigations of [Marian] Cosgrove prior to her resignation in November," James Mayse reports for the M-I. The police department's attorney had argued that the documents were exempt from the Open Records Act because they were "internal" and because Cosgrove resigned before any administrative action was taken against her.

Appeals court allows Christian County cops to keep identifying information on police reports secret

The Kentucky Court of Appeals has ruled that the City of Hopkinsville can "withhold home addresses, telephone numbers and driver’s license numbers of people listed in arrest reports and criminal complaints," including people charged with crimes, crime victims, and witnesses in criminal cases, the Kentucky New Era reports. Mayor Dan Kemp told the newspaper he did not interpret the decision to apply to closed cases, but writer Jennifer P. Brown noted, "The ruling makes no distinction between police cases that are open or closed."

The case began when the New Era asked city police for records "related to allegations of stalking, harassment and terroristic threatening," Brown reports. The city refused to give the paper "reports in open cases and all reports involving juveniles. (Juvenile court proceedings are closed and the names of juvenile defendants are not released. However, state law does not require police to withhold the names of juvenile who witness or are victims of crimes.) Of the records released in the city’s initial response, the city redacted a wide range of identifying factors, including a person’s race, gender, date of birth, ethnicity, address and telephone number."

The newspaper appealed to Attorney General Jack Conway, who ruled in its favor. The city appealed to Christian Circuit Court, and after losing initially, got a ruling that it could "routinely redact addresses, telephone numbers, driver’s licenses and Social Security numbers," Brown writes. "The newspaper did not dispute the practice of withholding Social Security numbers." Soon afterward, police adopted a policy of "redacting addresses and telephone numbers on the reports it makes available every day to media outlets." The Christian County sheriff has no such policy.

Privacy trumps public interest: A three-judge panel of the Court of Appeals upheld the policy, citing the exemption in the Kentucky Open Records Act for "records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" and the court's 1994 decision that allowed redaction of employees' names, addresses, phone numbers, birthdate and Social Security number from state workers' compensation injury reports.

That court "reasoned that disclosure of such information would infringe upon the employees’ right to privacy in the home," Judge Laurence VanMeter wrote. "Such a right, which this court described as 'the right to be left alone,' is one of 'our most time-honored rights' and 'has long been steadfastly recognized by our laws and customs.'"

The law requires courts to balance the privacy right with the public's interest in disclosure, and the New Era argued that lack of the contact information would make it more difficult to report on the activities of the police department. But the court said the information itself would reveal "nothing about the Hopkinsville Police Department’s execution of its statutory functions."

The newspaper's attorney, Jon Fleischaker of Louisville, said the court failed to understand the role of journalists to investigate citizen reports that the police did not handle their cases properly. “It is often the case that we are investigating inaction as opposed to action,” he said. “The way you investigate inaction is to go to people who wanted action and didn’t get it.”

The paper was investigating police handling of such cases after a 2009 apartment fire started by a Molotov cocktail. "A man suspected of throwing the Molotov cocktail also doused a resident with gasoline, according to police. Neighbors told the New Era the suspect had threatened the couple living in the apartment, and according to court records, he had previously threatened a woman living in the apartment. He was later charged with arson."

Impact is limited, but implications may be great: Because the court said on its opinion that it was "not to be published," the decision has no precedental authority outside Christian County, but Fleischaker said it has statewide implications because another part of it defies everything he knows about the state Open Records Act, which he helped write and rewrite.

"On the question of redacting information from police reports, the appeals court shifted the burden from a public agency to those making open records requests," Brown reports. "This means that a public agency could withhold a particular piece of information in each record it releases, and it would not have to justify the redaction unless challenged."

UPDATE, June 10: The New Era is asking the state Supreme Court for discretionary review of the case. New Era Publisher Taylor Hayes said he and Fleischaker are discussing whether to appeal. Editor Eli Pace said, “Quite simply, this ruling prevents not just the media but anyone from holding law enforcement officials accountable for how they handle witnesses and victims. I’ve never seen a public agency anywhere else even try to withhold information as basic as what we were seeking. The court’s ruling is very disheartening.” (Read more)

Harrodsburg police officer stingy with information about fatal traffic accident

Five days after a traffic accident killed a prominent Mercer County farmer who was driving his tractor, a Harrodsburg police officer refused to release most details about it, citing moral grounds and a promise to the family of the 21-year-old driver of the other vehicle that "he would keep their son’s name out of the media until after his investigation was complete," Todd Kleffman of the Advocate-Messenger in Danville reported Wednesday.

Only under orders from Police Chief Billy Whitenack did Officer Jeff Pearce identify the 21-year-old as  William Phillips of Boyle County. Pearce still refused to release the name of a passenger in Phillips' vehicle or say what type of vehicle it was. "On Saturday, Mercer County Deputy Coroner Chuck Bugg said the driver of the second vehicle was airlifted from the scene but was unsure of the person’s identity or extent of the injuries," Kleffman reported. Bugg also identified John "Van" Landrum as the decedent "after Harrodsburg police released a statement saying only that one person died as the result of a two-vehicle collision on US 127."

State police are not involved in the investigation. "Pearce said he would not release any more information on the crash until after his investigation is complete, which he said could take between 10 days and a month," Kleffman reported. "Pearce told a reporter releasing information about the crash went against his morals. He also said he promised Phillips’ family he would keep their son’s name out of the media until after his investigation was complete." (Read more)

Open-records requests: One weekly tells how, another suggests its competitor does it too much

Sunshine Week, which ended yesterday, is designed to increase public awareness of the value of open government and efforts to keep it open. In Kentucky, at least one weekly newspaper made a special effort to spotlight the observance and its issues, noting inconsistency in what local government offices charged for copies of public records. Three counties to the east, another weekly made no mention of Sunshine Week, but created an unusual spectacle of raising questions about open-records requests made by the local, competing daily.

When a woman asked him if the sheriff could charge $5 for a five-page report, Editor-Publisher Ryan Craig of the Todd County Standard in Elkton surveyed his public agencies and reported, "Most of the public offices in Todd County are overcharging for public records." The sheriff''s proposed fee exceeded the allowable 10 cents per page by $4.50. Local police charge 25 cents a page. That's also the figure charged by court clerks. The courts have exempted themselves from the state Open Records Act, but media lawyer Jeremy Rogers told Craig that the fee may have prompted overcharging by agencies that are covered. Craig's story ended with a walk-through of how request records, and how to appeal to the state attorney general's office if a request is denied. The Standard is not online, but the pages with the story are here.

Publisher Jeff Jobe of the weekly Barren County Progress in Glasgow is in competition with the Glasgow Daily Times, as was evident from the top story in Tuesday's edition. The subhead reported that the Times had targeted the city police department since the hiring of a new chief. Most of the front-page story, which also consumed most of an inside page, was a listing of the requests in 2010 and 2011, only one made by the Progress.

"In recent weeks there have been numerous local concerns about the number of open-records requests made to certain agencies, along with speculation about the nature of those requests," the story said, without saying who was concerned or what the speculation was. Jobe filled that vacuum in an editorial, saying the Times appears determined to prove its opinion that the Chief Guy Turcotte is not worthy of the office. "Perhaps someday the GDT will hit pay dirt and Turcotte will go down in flames, but I am certain that with each open-record request that does nothing more than cost the city time in preparing documents, their requests come closer and closer to being considered nothing more than a 'Witch Hunt'." The Progress is mainly behind a pay wall, but we have scanned and posted the editorial here.

Rockcastle County 911 Board failed to prove harm in releasing tape and dispatch log

The Rockcastle County 911 Board violated the state Open Records Act by failing to prove that a tape and dispatch log were exempt from disclosure, the attorney general's office has ruled.

In originally denying the request, the board indicated that the records were “unavailable because of an ongoing investigation.” While this is a valid reason for exempting a public record under KRS 61.878(1)(h), the board did not cite the statute in its denial (violation of the procedural requirements) and also failed to prove that release of the record would harm the Mount Vernon Police Department (violation of the substantive requirements).

After privately reviewing the tape and dispatch log, the attorney general’s office confirmed that the records were of radio communications concerning a traffic stop. However, because the records only contained general information and not primary evidence, the office decided that disclosure would not weaken the board’s case, hinder its investigation, or taint the jury pool. It said the board did not overcome the presumption in the act that records are public.

Series on questionable disability payments in Lexington led to closure of records involved

Sometimes journalism based on public records prompts government officials to hide the records to prevent further journalism about them.

In 2005, the Lexington Herald-Leader revealed "a high rate of disability pensions among Lexington police officers and firefighters. The stories named pensioners with allegedly severe physical ailments who remained competitive athletes or who returned to the public payroll for new jobs similar to their old ones," John Cheves writes for the newspaper.

"Change came almost immediately. But not to the system doling out millions of dollars in disability pensions every year. Rather, the public no longer has access to many city records the newspaper used to report its stories. Police and fire unions successfully lobbied the General Assembly in 2006 to exempt those documents from the Kentucky Open Records Act." (Read more)

Kentucky looks like only state that denies access to recordings made by police-cruiser cameras

Kentucky appears to be the only state that denies public access to recordings made by cameras in police cruisers. Scott Wartman of The Kentucky Enquirer discovered that this week as he followed up on the guilty plea by Covington City Commissioner Steve Frank for driving under the influence.

"Open-records laws across the country compiled by the Reporters Committee for Freedom of the Press show that only in Kentucky is the public not allowed to view video of DUI traffic stops," Wartman writes. "First Amendment experts say they don't know of any other state with an exemption for DUI videos," and some think the law "raises constitutional issues and violates the public's right to know." Making cruiser recordings available "serves as an important check on police abuse," David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Nashville, told Wartman.

The law was passed in 1984 with major changes to Kentucky's DUI law. The sponsor of the bill, then Sen. Henry Lackey, told Wartman that he didn't know why. "I don't remember anyone bringing that issue up," said Lackey, now deputy state aviation commissioner. Jon Fleischaker, attorney for the Kentucky Press Association, told Wartman, "Although I don't know for certain, my guess is it was done out of some misguided sense of privacy and some concern for how the thing could be used." He said the law could be challenged on constitutional grounds if a recording is used in a case. "Let's say I'm a defendant who is wrongfully accused and I want to show the public the tape," he said. "Why shouldn't I be able to do that?"

Judge tells Hopkinsville police to release police records on threats made in city

A circuit court judge has ruled that Hopkinsville officials improperly withheld reports from the Kentucky New Era last year. The mayor told the newspaper the city might appeal the ruling because it could set a bad precedent, but if the Court of Appeals upheld the decision that would give it statewide impact.

The New Era asked Hopkinsville police in September for all reports referencing threats made in Hopkinsville during an eight-month period. "City Clerk Crissy Upton provided more than 400 reports, but withheld others, saying they either involved juveniles or were under investigation," Kevin Hoffman writes for the Hopkinsville daily. The newspaper appealed the denial, and Attorney General Jack Conway ruled all the records should be released. The city appealed, and Circuit Judge Andrew Self ruled for the newspaper, holding the city hadn't shown why one or more exemptions in the Open Records Act applied.

Self wrote that the city's response was “thoughtful based on its interpretation of applicable law,” but refusing to release some reports and redacting identifying information such as race and gender violated the law. “The records requested by the New Era were reasonable, appropriate and consistent with its function as a member of the news media to inform the public of the operations of local government,” Self wrote. “If there is a dispute about which records should be released or withheld, it is incumbent upon the public agency to prove in circuit court why a particular exemption applies. To allow otherwise would be akin to the proverbial fox guarding the hen house.”

New Era Editor Jennifer P. Brown said the law makes public “reports completed by police agencies . . . including arrest citations and the initial incident report that is filed when a citizen calls police to report a crime. . . . If a police agency is allowed to withhold the very proof of its work in the way the city of Hopkinsville wants to withhold these records, it becomes impossible for news agencies and private citizens to understand the types of crimes committed in a community and how police are responding to those crimes. Collectively, police reports offer valuable information about trends and patterns in crime. That information should be available to the public.” (Read more)