KY- CJ wins fight over sex-offender database

5-19-2009 Kentucky:

A Franklin Circuit Court judge has ruled that the Kentucky State Police must provide The Courier-Journal with a copy of its sex-offender registry database under the state’s open records law.

Shepherd’s ruling Friday affirms an opinion last year from Attorney General Jack Conway’s office that the material is public record — an opinion state police had challenged in an appeal to circuit court.

In an apparent rebuke, Judge Phillip Shepherd ordered the state police to pay the newspaper’s attorneys fees for the costs of the appeal, noting the agency had elected to appeal “against the advice of the chief legal officer of the commonwealth.”

Failing to award costs to the winning side could have a “chilling effect” on public access to records, he said in an order and opinion.

“The threat of appeals by state agencies and the costs of protracted litigation is itself a disincentive for citizens and business to exercise their rights under the Open Records Act,” Shepherd’s opinion said.

Jon Fleischaker, a lawyer for The Courier-Journal, said today he thought the ruling was appropriate and that the newspaper is entitled to the database, which includes photos and other records of individuals convicted of sex offenses.

The state police already posts sex offenders on a state Web site, but the newspaper had asked for the complete database, which would have allowed it to analyze details and do a closer review of the information.

“We think it’s a good decision,” Fleischaker said. “We think it resolves the matter.”
But Jennifer Brislin, a spokeswoman for the state Justice and Public Safety Cabinet, which includes the state police, said the agency is “disappointed in the ruling.”

“We’re still reviewing it and haven’t decided whether we’re going to appeal,” she said.

Fleischaker said he believes it’s especially significant that Shepherd chose to order state police to pay the newspaper’s cost of the failed appeal.

“He has basically shifted the costs of losing to the agency,” Fleischaker said.
The dispute began after the state police refused the newspaper’s request for a copy of the database, arguing that the request was “unduly burdensome.” The agency also said the material was maintained exclusively in a “proprietary format” licensed from an outside vendor.

And it maintained that the agency already provides some of the information to the public through the state’s sex offender Web site, which people may search by offender name, city, county or zip code, according to Shepherd’s opinion.

But Shepherd found none of those to be a valid reason for denying the newspaper’s open records request. His opinion said state law is clear that agencies must provide electronic data to the public — even if the material is already available in some form through a government Web site.

“Although online access may be provided, the agency still must comply with requests for records in hard copy or electronic format,” his opinion said.

The order doesn’t state how much the state must pay The Courier-Journal in attorney’s fees but directs the newspaper’s lawyers to submit an itemized list of legal expenses. Shepherd said he would consider any comments from the state police before making a final award. ..News Source.. by Deborah Yetter