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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