Friday, October 9, 2015

Application of state law to public universities

Kentucky has nine publicly supported institutions of higher learning. (See

As recipients of state funding, these schools are subject to the open records and open meetings requirements provided by state statute. 

Since these entities play a major role in the state, both in terms of employment and in education, denials of open meetings and open records requests often lead individuals to appeal a school's decision to the attorney general's office. 

For example, at the beginning of October, the attorney general's office released an opinion involving Western Kentucky University and its partial denial of a records request from the Bowling Green, Ky., newspaper.

In The Daily News/Western Kentucky University, 15-ORD-189, the paper's assistant city editor appealed the university's partial denial of a reporter's request for records concerning, among other items, memos between the university's human resources director and its president concerning the school's former provost. 

As to the requested memoranda, the university's general counsel advised the paper's reporter that the documents would not be released because they were internal communications.

In its opinion, the attorney general's office focused on whether such documents had been properly withheld from disclosure.

In its analysis, the AG's office noted not only that Kentucky's public policy favors disclosure of public records, but also that the state legislature has permitted exemptions in certain instances. The exception at issue in this case concerned "preliminary" documents. 

As to the nature of this exception, the opinion cited a Kentucky Supreme Court case for the proposition that: "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." 

Thus, the attorney general's office had to determine whether the university had properly invoked the use of that exemption in order to partially deny the newspaper reporter's requests. To do so, the AG's office reviewed certain unredacted evidence provided by the university in camera.

Upon examination, the attorney general's office found that some of the documents had been lawfully withheld, but that at least one document had not been. Thus, it would become the university's burden to demonstrate that the document should not be released; otherwise it must be, with any preliminary information redacted. 

Further, as to another email thread, if any recommendations had been relied upon by the university's president for any final decision, those recommendations and opinions must also be disclosed. 

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