Friday, August 19, 2016

UK to sue Kernel; Beshear rules UK violated Open Records Act

The University of Kentucky plans to sue the Kentucky Kernel after the attorney general issued an opinion that the university violated the Open Records Act.

Attorney General Andy Beshear issued an opinion in In re: Kentucky Kernel/University of Kentucky, 16-ORD-161 on Aug. 1 after the school’s independent newspaper was denied documents it requested from the university involving an associate professor and complaints of sexual harassment.

The newspaper’s editor-in-chief, Will Wright, filed an open records request to the university asking for all documents related to a tenured professor and any allegations of sexual harassment, sexual assault, or other misconduct. 

UK quickly denied the request by stating that it could not release the records because the documents requested by Wright were preliminary in nature and thus exempt from disclosure. UK also argued some of the documents were protected by KRS 61.878(1)(a) which would be an unwarranted invasion of personal privacy. Lastly, the university stated that some of the documents would violate the attorney-client and work product privileges of the Kentucky Rules of Evidence. 

Beshear said UK did not explain the application of these statutes and rules to the documents, by not including the statutorily required statement of how the exception applies to the record withheld but simply recited the language of the exception. 

After Wright’s appeal, UK provided Wright with an agreement between the university and Associate Professor James Harwood, who resigned effective Aug. 31, 2016, but it still failed to identify to Beshear any records previously given prior to Wright's appeal.

Beshear’s office requested the documents for review, both those released to Wright and those withheld, in order to substantiate the claims UK made. UK brought up new arguments and attempted to argue that a statute limited the role of the attorney general in this case and refused to turn over any documents. 

Beshear replied that UK misconstrued the meaning of the statute because the burden of proof was on the agency resisting disclosure and the Office of the Attorney General has the power to request additional documentation that substantiates its refusal. Beshear said that in these cases, it is the job of his office to investigate and give an informed and reasoned decision through statutory guidelines. He concluded that because of the university's refusal to make the documents available for review by the office, UK was violating the Open Records Act. 

In light of that holding, Beshear said the university must make the documents immediately available for Wright’s inspection and copying, except that the names of complainant and witnesses should be redacted. 

As with every attorney general opinion, the opinion has the force of law, but either party has the right to appeal to circuit court. In an email sent campus-wide on Aug. 8, President Eli Capilouto said UK would appeal this opinion along with an open meetings decision issued by Beshear. 

“The responsibility to share information is at odds with another sacred responsibility: protecting the privacy of our students, faculty, staff and those for whom we provide care,” Capilouto said. “And in these moments of conflict, we believe strongly in the need to protect the privacy of members of our community: our students, patients, faculty, and staff.”

He stated that of the around 800 Open Records Request the university gets yearly, it quickly and fully responds to 90 percent of them. 

“But in a handful of very specific cases, we are faced with the decision of whether transparency is more important than the need to protect the privacy and dignity of individual members of our community. It is not,” Capilouto said. 

In the opinion, Beshear dealt with the privacy issue. While the opinion ruled the documents should be released to Wright under the Open Records Act, Beshear said the names of the complainant/victim and any witnesses should be redacted.

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