Reporters Committee urges Kentucky high court to reject expansion of public records law privacy exemption

The Reporters Committee for Freedom of the Press, along with The E.W. Scripps Company, filed a friend-of-the-court brief in the Kentucky Supreme Court on Monday arguing that an individual does not have a right to to block access to otherwise public records simply because they were generated decades ago.

The case before Kentucky’s highest court, Lawson v. Office of the Attorney General, involves an Open Records Act request made by the Lexington Herald-Leader, The Courier-Journal, and The Associated Press for a proffer statement given by local businessman Leonard Lawson during a 1983 antitrust investigation into a company he operated. In the proffer statement, Lawson agreed to assist the investigation and was not prosecuted further.

After federal officials indicted Lawson in 2008 in connection to a bid-rigging scheme associated with state road construction contracts, the three media organizations requested the 1983 proffer under the state's public records law. A jury acquitted Lawson of the 2008 charges.

Lawson sued to prevent the document’s disclosure, arguing in part that the record had to be withheld under the Open Records Act’s privacy exception because the amount of time that had lapsed between when he gave the proffer and when it was requested increased the privacy harm that would result if the record was released.

The brief argues that the age of a document requested under the state’s Open Records Act should not by itself determine whether it must be withheld from the public. It also argues that embracing Lawson’s argument would allow individuals to have public records concerning them be completely forgotten with the passage of time.

"Access to public records should not be dictated by the age of a document as there are many legitimate reasons to inquire into government activities from years past," said Reporters Committee Executive Director Bruce D. Brown. "A blanket rule going the other way ignores the many ways historic information is relevant today."

The brief goes on to argue that “The Open Records Act is not intended to facilitate erasing history” and further states that “Holding that the age of a document alone can trump the public’s right to access certain records would run counter to the ‘underlying policy of openness’ in the Open Records Act, shifting the burden onto requesters to show that the documents should be released.”

Jeffrey Mando of the Kentucky law firm of Adams, Stepner, Woltermann & Dusing, PLLC filed the brief on behalf of the Reporters Committee and E.W. Scripps.

About the Reporters Committee for Freedom of the Press

Founded in 1970, the Reporters Committee for Freedom of the Press offers free legal support to thousands of working journalists and media lawyers each year. It is a leader in the fight against persistent efforts by government officials to impede the release of public information, whether by withholding documents or threatening reporters with jail. In addition to its 24/7 Legal Defense Hotline, the Reporters Committee conducts cutting-edge legal research, publishes handbooks and guides on media law issues, files frequent friend-of-the-court legal briefs and offers challenging fellowships and internships for young lawyers and journalists. For more information, go to www.rcfp.org, or follow us on Twitter @rcfp.