On June 19, the Kentucky Court of Appeals issued an opinion rejecting the City of Taylorsville’s efforts to silence a local critic, Lawrence Trageser, by means of a legal action against him for compensatory and punitive damages.
The case is rooted in an open records dispute dating back to 2016.
The court explained:
“The instant dispute arose due to Trageser’s efforts to obtain documents related to a 2016 ethics complaint involving the City and three of its Commissioners, and his subsequent use of some additional documents he obtained outside the ORA process.“
The city denied Trageser’s open records request, and he successfully appealed the denial to the Kentucky Attorney General.
The city thereafter “filed suit against Trageser in Spencer Circuit Court. In addition to appealing the Attorney General’s decision, the city sought compensatory and punitive damages against Trageser on the ground that he violated the City’s rights by obtaining and publishing on his website a copy of an August 29, 2016 interoffice memorandum … not obtained through ORA.”
The Spencer Circuit Court issued a strongly worded rebuke to the city in February 2017. The court declared:
“[T]he city brought an unfounded claim in this case for compensatory and punitive damages against Trageser in an apparent attempt at intimidation to dissuade him from further exercising his rights under the Open Records Act in this case and in future cases. This court finds this tactic by the City and its Ethics Commission to be in bad faith and designed to subvert the intent and purpose of the Open Records Act.”
Incorporating this languages in its published opinion, the Court of Appeals affirmed:
“The ORA is a statute that provides one mechanism for members of the general public to obtain government records through an official and orderly channel. The ORA does not provide a remedy to the City or to any government entity to seek civil damages for the publication of a document, even one exempt under the ORA. To put the matter a different way, the government can use the ORA as a shield; it cannot use it as a sword. The circuit court correctly dismissed the City’s claim against Trageser.”
Kentucky Open Goverment Coalition Director Jeremy S. Rogers, a widely esteemed First Amendment attorney and partner in the law firm of Dinsmore & Shohl, represented Trageser pro bono.
Given the egregiousness of the city’s actions, the court affirmed Rogers’ entitlement to attorneys fees, “including those that accrued in the defense of the appeal.“
The court awarded Trageser penalties of $25 per day, from February 2017 “and continuing until the time the City of Taylorsville and its Ethics Commission provide complete unredacted copies of the public records to Trageser.”
To date, the City has not released the records and the penalties continue to accumulate.
This is an important victory for open government, and a critical rebuke to public agencies that seek to weaponize the open records law to silence their critics.
Sadly, it has garnered little attention from the media which will benefit from the strong message it sends to public agencies contemplating similar Strategic Lawsuits Against Public Participation (SLAPP).
Once again, the question is: Will the City of Taylorsville risk further rebuke — and mounting attorney’s fees, costs, and penalties — by seekIng discretionary review in the Kentucky Supreme Court?
Perhaps the better question is: What will it take to convince Taylorsville that it doesn’t have a legal leg to stand on?
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