From American Oversight, and local counsel Strobo Barkley, PLLC, comes news that a final settlement has been reached in its three-and-a-half-year open records battle with the Office of the Kentucky Attorney General.
The final cost to Kentucky's taxpayers is not insignificant. The OAG has agreed to pay American Oversight $99,750.00 “[i]n consideration of the settlement terms and dismissal of the [l]awsuit.”
But the chief takeaway from the settlement of the litigation is the affirmation that the Attorney General is subject to the same standard of strict open records compliance when he receives a request for records of his agency that his office applies to all other public agencies in adjudicating disputes involving discharge of their open records duties. This includes the first and foremost public agency duty upon receipt of an open records request: “to make all reasonable efforts to locate records responsive to the requester’s application.”
American Oversight v Office of the Attorney General originated in former Attorney General Daniel Cameron’s responses to American Oversight’s July 20, 2020, open records requests to inspect records maintained by his office related to the Ballot Integrity Task Force. The OAG acknowledged the existence of 13 responsive records but denied American Oversight access, producing a single meeting agenda in response. When American Oversight appealed, the Attorney General issued an open records decision finding no violation of the open records laws in his office’s cursory disposition of the requests.
Following American Oversight's appeal of that OAG’s open records decision, the Franklin Circuit Court issued a groundbreaking opinion in which the court rejected Cameron’s effort to shift the burden to the public “to know all relevant search terms or places where the agency may file [responsive] records. To place the burden on the requestor is to invite the agency to hide relevant records that are obscurely labeled or stored in deep recesses of its bureaucratic records system. It is the duty of the agency to conduct an open, thorough, and good faith search of its records in response to an Open Records request.”
The resulting search yielded “395 pages of records, American Oversight said in a court filing. Of those, 85 were new and 310 pages were records previously identified but withheld.”
In spite of this unambiguous ruling and supplemental search, Cameron’s staff continued to stonewall American Oversight. This extended the litigation, and culminated in the court’s July 18, 2023, order directing American Oversight “to conduct depositions of the designated representative, or representatives, of OAG to address any factual disputes that remain unresolved regarding compliance with the prior Orders of this Court, including but not limited to ... the scope of the OAG’s original and supplemental searches for the requested documents.”
The settlement agreement picks up the narrative:
“Instead of deposing the OAG representative, the parties entered into a Statement of Stipulated Facts in this matter on September 18, 2023, stating the reasons that the searches performed did not discover records reflecting Task Force formation documents or investigation of actual cases of suspected voter fraud.
“American Oversight thereafter pursued its claims for attorney’s fees, costs, and penalties under KRS 61.882, alleging that the OAG's actions were tantamount to a willful violation of the [Open Records] Act.”
Subsequent negotiations resulted in American Oversight’s agreement to dismiss all claims and the Attorney General’s agreement to pay American Oversight the “total sum” of $99,750. The agreement does not indicate what portion of the total sum represents attorney’s fees, what portion represents costs, and what portion, if any, represents penalties, but it concludes:
“The parties further understand and agree that this Agreement is executed for the purpose of compromising disputed claims and that the terms of this Agreement shall not be construed as an admission of liability by the OAG, which it expressly denies.”
On January 22, the Franklin Circuit Court signed an agreed order of dismissal of American Oversight v Office of the Attorney General, the case having been handed off from the former Attorney General to his successor, Attorney General Russell Coleman.
Assuming he played a role in the final resolution of this long-running open records dispute, General Coleman should embrace the lessons the case imparts, holding himself and his office to the same standard of strict compliance with the open records law that his staff regularly applies to other public agencies in adjudicating open records disputes.
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