Fired Louisville employee has right to his records, despite Open Records Law

A headline in the January 4 Courier Journal, “Fired U of L Ladybirds coach Todd Sharp demands proof of wrongdoing,” involves a little known provision of the Kentucky open records law. On December 15, the university terminated Sharp who gained minor celebrity as the hard driving, often caustic, but highly successful, coach of the university dance team/star of Lifetime’s “So Sharp” reality series. His legal team is now using the open records law to obtain public records that might explain the university’s decision to dismiss him.

In a January 4 letter, attorneys for Sharp requested access to university records relating to him, “including Sharp's personnel file; a copy of the university's cash-handling policy; evidence it relied on to allege Sharp violated the policy and used his position for personal gain; video and audio tapes of the interviews investigators conducted; and all correspondence, texts and emails between U of L staff and the athletic department and anyone about Sharp's employment.”  

    

The little known statute, KRS 61.878(3), has been called “the exception to the exceptions.” It invests public agency employees, “including university employees,” with an enhanced right of access to records that “relate to”  them even if the records are otherwise excluded from public inspection under one or more of the 16 exceptions to the open records law found at KRS 61.878(1)(a) through (p). 

Unless the requested record is “an examination,” or is part of an “ongoing criminal or administrative investigations by the agency,” a public/university employee, like Sharp, has a statutory right to inspect and obtain copies of records relating to the employee which a public agency/university could legally refuse to release to the general public.  

It was a University of Kentucky professor of toxicology, Dr. Davy Jones, who, in 1992, successfully led the charge to ensure the rights of university employees to the same enhanced right of access to otherwise exempt public records that KRS 61.878(3) previously invested in public employees in the state merit system only.

And it was a University of Louisville research technologist, Theresa Hahn, who, in 2001, unsuccessfully fought to extend the scope of KRS 61.878(3) to university records relating to her that were protected by the attorney-client privilege in the Court of Appeals opinion, Hahn v. University of Louisville.  

   

Because the statute extends an enhanced right of access to “applicants for employment,” the Kentucky attorney general has, since 1997, construed KRS 61.878(3) to apply to former employees. That line of judicially untested open records decisions is based on the reasoning that the legislature could not have “intended to endow applicants for public employment with a broader right of access to records relating to them than former public employees.” “Former employees,” the decisions affirm, “have a greater investment in public service, both professionally and legally, and a corresponding need to preserve their legal rights and professional reputations by insuring the accuracy of records relating to them.” Regardless of whether  “they voluntarily left public employment to pursue other careers, were forcibly separated from public employment, or, after years of service, retired from public employment,”  former public employees “are entitled to know at least as much about records relating to them in their former public employer's possession as applicants for public employment” and current employees. 

The Courier Journal article does not indicate whether the University of Louisville has responded to the open records request submitted by Sharp’s attorneys and, if so, how. Nor is it entirely clear whether the university’s “criminal or administrative investigation” is concluded, although Sharp’s termination suggests that it is. If so, KRS 61.878(3) governs Sharp’s right of access to records relating to him.  

–Amye Bensenhaver, former assistant attorney general.