Kentucky courts still grappling with records of probes into sexual harassment at universities

From the Kentucky Open Government Coalition

An article in the Wisconsin State Journal reminds us that the issue of access to university records relating to investigations into sexual harassment by faculty and staff has yet to be finally resolved by Kentucky’s courts.

The open records lawsuit pitting Western Kentucky University against the University of Kentucky student newspaper, The Kernel, and it’s own student newspaper, The College Heights Herald, remains in Warren Circuit Court. This follows a 2017 Kentucky attorney general’s ruling that WKU improperly relied on the Family Educational Rights and Privacy Act as the basis for withholding sexual harassment investigative records.

In a separate lawsuit pitting UK against the Kernel, the Kentucky Court of Appeals in 2019 affirmed a 2016 attorney general’s decision, reversed a local judge's opinion, and ultimately rejected UK’s claim that FERPA protects university investigative records into allegations of sexual harassment.

However, the court returned that lawsuit against the Kernel to Fayette Circuit Court for further review on other privacy issues. There it remains.

The court slammed UK for failing to “fulfill its statutory mandates under the Act” and making no “attempt to comply with the Open Records Act in any meaningful way.”

Rejecting the suggestion that the Kernel was motivated by “simple curiosity,” the court recognized that “the public has an interest in the investigatory method used by its public agencies and to know that a publicly funded university has complied with all state and federal laws.”

It criticized the university for taking “the indefensible position that the records are exempt because it says they are and it must be believed.”

The University of Wisconsin case presents similar facts and similar illegal university secrecy. It involves a tenured ecology professor who retired in the midst of an investigation that confirmed allegations of sexual harassment.

Neither the professor nor his victims were satisfied by the university’s investigation and subsequent “cover up.”

Echoing the Kentucky Court of Appeals in the UK v. Kernel case, Frank LaMonte, director of the Brechner Center for Freedom of Information at the University of Florida and former director of the Student Press Law Center, observes: “There’s a compelling public interest in the investigative process. The public needs to be able to see that cases are being taken seriously, processed promptly and dealt with appropriately. If you cannot see the records, the university is left on a ‘trust me’ honor system. We know from experience that the ‘trust me’ honor system doesn’t always work.”

Bill Lueders, president of the Wisconsin Freedom of Information Council, notes that release of redacted records helps the public assess how fair the investigation was to both parties: “This is a case in which a public employee’s misconduct was affirmed by an investigation. The public has a right to know what that misconduct was beyond ‘sexual harassment,’ which could mean anything and include a wide range of behavior.”

Appeals court upholds award of attorney fees to reporter, citing city's repeated 'false denials'

The Kentucky Court of Appeals ruled today that the City of Owensboro must pay the legal fees of a newspaper reporter to whom it refused to give copies of complaint forms about the police department's public-information officer.

James Mayse of the Messenger-Inquirer sought records involving Marian Cosgrove, who resigned her job in November 2011 after coming under investigation by the department. He asked for any documents related to any complaint about her, and the city repeatedly said it had no records that would be responsive to his requests.

Mayse appealed to Attorney General Jack Conway, whose office asked for and got the investigative files from the city. Conway ruled that the city must release the initial complaint forms in the file because they are not exempt from the state Open Records Act. The city appealed to Daviess Circuit Court, where Judge Jay Wethington ruled for Mayse. He said the city's denials were "willfully defiant" of the intent of the law and done in "bad faith," so the city should pay Mayse's legal fees.

The city appealed, but gave Mayse the two Professional Standards Complaint Forms, so the appeals court dismissed that part of city's appeal. In granting Mayse attorney fees, the three-judge panel wrote, "The City's response, on three separate occasions, that no record responsive to Mayse's requests for complaints is problematic given the egis of the Open Records Act. In fact, there were two documents labeled "Professional Standards Complaint Forms" in Cosgrove's file from the inception of Mayse's requests. When the attorney general asked repeatedly about the existence of 'any other document,' the city also denied the existence of such documents to the OAG. The circuit court found the city's explanation that the information was incorrectly put on a complaint form and labeled 'internal' was not persuasive and defied the statutory intent of the Open Records Act. In essence, the City repeatedly made false denials of the existence of any complaints regarding Cosgrove." The decision is here.

Ky. high court says police can't just dismiss records requests using prospective-action exemption

The Supreme Court of Kentucky ruled today that law enforcement records are subject to open-records requests even if there is a "prospective law enforcement action," and that to withhold records for that reason, a law-enforcement agency must prove that a premature release of the them would hurt its prospective action.

The state's highest court ruled in a case brought by The Kentucky Enquirer, which wants the investigative file about a murder to which the victim's widow pleaded guilty in 2009 but is now seeking a new trial, alleging she had ineffective counsel. The Gannett Co. newspaper, an edition of The Cincinnati Enquirer, has been seeking the file since the case concluded.

The ruling "is a big step forward for us," Kentucky Press Association counsel Jon Fleischaker told the newspaper organization, which supported the Enquirer's efforts. "The court handed down some guidelines for proof in an open-records case which will be very helpful to us, especially in cases like the pending action against the Cabinet for Health and Family Services. Finally, there is very useful language regarding the imposition of attorney’s fees and the circumstances under which the award of attorney’s fees is appropriate.  Those guidelines will be useful for all of us." For Fleischaker's note and a copy of the decision, click here.

The court "found that although the municipality’s response to The Enquirer request for records was inadequate, it has not been shown to have willfully violated the law, and so does not provide a basis for sanctions," Jim Hannah writes for the newspaper. "The Enquirer had asked that the municipality pay its legal bills in the case. Fort Thomas was ordered to make a good faith effort to identify those records responsive to The Enquirer’s request and either provide them to the newspaper or explain with why, under the law, they are exempt. A Campbell Circuit Court judge would then be asked to review what the city claimed was exempt to ensure the law was being followed." (Read more)

Illegal meetings held by Danville commission, court says; and by Murray regents, attorney general says

"Two rulings came this week — one in circuit court, one by the attorney general — that public agencies have violated the state’s open meetings law," David Thompson writes in his weekly missive as executive director of the Kentucky Press Association.

"In Boyle Circuit Court, a judge ruled Thursday that the Danville City Commission held an illegal session and in the much-publicized Murray State University situation, an AG’s ruling on Wednesday said the Board of Regents violated the law by discussing the MSU president’s situation the night before the board’s official meeting."

Thompson's post has a short story from Todd Kleffman of The Advocate-Messenger and draws from a story in The Paducah Sun distributed by The Associated Press. To read it, click here.

Illinois' anti-eavesdropping law can't be used against those who record police, high court says

The U.S. Supreme Court has let stand an appellate-court ruling in Illinois that "The state's anti-eavesdropping law violates free-speech rights when used against people who tape law enforcement officers," the Chicago Tribune reports. "Opponents of the law say the right to record police is vital to guard against abuses." (Read more)

Appeals court allows Christian County cops to keep identifying information on police reports secret

The Kentucky Court of Appeals has ruled that the City of Hopkinsville can "withhold home addresses, telephone numbers and driver’s license numbers of people listed in arrest reports and criminal complaints," including people charged with crimes, crime victims, and witnesses in criminal cases, the Kentucky New Era reports. Mayor Dan Kemp told the newspaper he did not interpret the decision to apply to closed cases, but writer Jennifer P. Brown noted, "The ruling makes no distinction between police cases that are open or closed."

The case began when the New Era asked city police for records "related to allegations of stalking, harassment and terroristic threatening," Brown reports. The city refused to give the paper "reports in open cases and all reports involving juveniles. (Juvenile court proceedings are closed and the names of juvenile defendants are not released. However, state law does not require police to withhold the names of juvenile who witness or are victims of crimes.) Of the records released in the city’s initial response, the city redacted a wide range of identifying factors, including a person’s race, gender, date of birth, ethnicity, address and telephone number."

The newspaper appealed to Attorney General Jack Conway, who ruled in its favor. The city appealed to Christian Circuit Court, and after losing initially, got a ruling that it could "routinely redact addresses, telephone numbers, driver’s licenses and Social Security numbers," Brown writes. "The newspaper did not dispute the practice of withholding Social Security numbers." Soon afterward, police adopted a policy of "redacting addresses and telephone numbers on the reports it makes available every day to media outlets." The Christian County sheriff has no such policy.

Privacy trumps public interest: A three-judge panel of the Court of Appeals upheld the policy, citing the exemption in the Kentucky Open Records Act for "records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" and the court's 1994 decision that allowed redaction of employees' names, addresses, phone numbers, birthdate and Social Security number from state workers' compensation injury reports.

That court "reasoned that disclosure of such information would infringe upon the employees’ right to privacy in the home," Judge Laurence VanMeter wrote. "Such a right, which this court described as 'the right to be left alone,' is one of 'our most time-honored rights' and 'has long been steadfastly recognized by our laws and customs.'"

The law requires courts to balance the privacy right with the public's interest in disclosure, and the New Era argued that lack of the contact information would make it more difficult to report on the activities of the police department. But the court said the information itself would reveal "nothing about the Hopkinsville Police Department’s execution of its statutory functions."

The newspaper's attorney, Jon Fleischaker of Louisville, said the court failed to understand the role of journalists to investigate citizen reports that the police did not handle their cases properly. “It is often the case that we are investigating inaction as opposed to action,” he said. “The way you investigate inaction is to go to people who wanted action and didn’t get it.”

The paper was investigating police handling of such cases after a 2009 apartment fire started by a Molotov cocktail. "A man suspected of throwing the Molotov cocktail also doused a resident with gasoline, according to police. Neighbors told the New Era the suspect had threatened the couple living in the apartment, and according to court records, he had previously threatened a woman living in the apartment. He was later charged with arson."

Impact is limited, but implications may be great: Because the court said on its opinion that it was "not to be published," the decision has no precedental authority outside Christian County, but Fleischaker said it has statewide implications because another part of it defies everything he knows about the state Open Records Act, which he helped write and rewrite.

"On the question of redacting information from police reports, the appeals court shifted the burden from a public agency to those making open records requests," Brown reports. "This means that a public agency could withhold a particular piece of information in each record it releases, and it would not have to justify the redaction unless challenged."

UPDATE, June 10: The New Era is asking the state Supreme Court for discretionary review of the case. New Era Publisher Taylor Hayes said he and Fleischaker are discussing whether to appeal. Editor Eli Pace said, “Quite simply, this ruling prevents not just the media but anyone from holding law enforcement officials accountable for how they handle witnesses and victims. I’ve never seen a public agency anywhere else even try to withhold information as basic as what we were seeking. The court’s ruling is very disheartening.” (Read more)

Cabinet appeals judge's order that it pay civil penalties and newspaper's legal fees

The state Cabinet for Health and Family Services has appealed a judge's order telling it to pay more than $6,000 in civil penalties and nearly $10,000 in attorney fees for acting in bad faith in resisting release of files related to Amy Dye, the 9-year-old Todd County girl who was murdered by her foster brother last year.

Franklin Circuit Judge Phillip Shepherd ruled that the Todd County Standard was entitled to the fees and fines because the agency violated the state Open Records Act. "That ruling and others like it for the Louisville Courier-Journal and Lexington Herald-Leader are thought to be the first time a state agency had been fined for violating the open record laws since they were adopted in the 1970s," the Standard reports.

"The agency at first denied even having any records on Dye then said it did not have to give the records to the Standard because Dye was killed by a sibling and not a parent," the paper notes.

Small, weekly newspaper beats stonewalling state agency in case of adopted child's murder

When a 9-year-old girl was found beaten to death and her adoptive brother was charged with murder, the local newspaper wanted to know what the state child-welfare agency had done, or not done, with the family in the four years Amy Dye, left, had been placed there. The Kentucky Cabinet for Families and Children stonewalled the Todd County Standard, but the small, weekly newspaper fought in court and a judge found that the agency had violated the state open-records law -- and prevented further stonewalling on appeal by putting the records in his ruling.

The records paint "deplorable picture of what happens when those who are assigned to protect a child fail," Editor-Publisher Ryan Craig wrote in his Nov. 9 paper. Franklin Circuit Judge Philip Shepherd of Frankfort "said that Amy was put in the Dye home despite there being a 'substantiated' incident of child abuse prior to her placement" and the case is an "example of the 'potentially deadly consequences of a child welfare system that has completely insulated itself from meaningful public scrutiny'," Craig wrote.

In his Nov. 16 edition, Craig reported that a closer look at the records showed "that the cabinet made a choice within a few days of Amy Dye’s death and a day after the Standard filed an open records request to declare the scope of the investigation in a way that would keep the files from becoming public," by classifying its probe as a "neglect investigation" instead of a "fatality investigation," which by law must be public. His story noted that "Officials with the Cabinet delayed nearly two weeks — violating open-records laws — before even responding to the Standard’s initial request for records. Then when the Standard received a response, it was told there were no files whatsoever on Amy Dye."

The Standard is not online, but we have posted PDFs of its Nov. 9 front and jump pages here and here and its Nov. 16 pages here and here. The photo of Amy is from The Courier-Journal of Louisville, which reported on the case in detail today. For the story by Deborah Yetter, go here.

State high court makes clear that contempt proceedings against jurors must be public

In a ruling that could clear up what it called "continuing confusion" among Kentucky judges, the state Supreme Court has ruled unanimously that criminal contempt-of-court hearings for jurors must be open to the public.

The court ruled that Susan Schultz Gibson, a circuit judge in Jefferson County, "should have allowed the public and media access to a contempt-of-court hearing for a juror" whom she suspected of violating her order to avoid publicity about the case last year, Jason Riley wrote for The Courier-Journal. He and the newspaper were the plaintiffs in the case.

"The ruling overturns a state Court of Appeals ruling that found the issue was moot, since the case was over and no one was asking for the hearing to be held again," Riley wrote. "The high court, however, said the issue must be settled so it does not reoccur." The newspaper's attorney, Jon Fleischaker, told Riley, “It's an important decision for the precise reason we were concerned it could happen again.” (Read more)

West Virginia Legislature sends governor a shield law that protects student journalists

Our adjoining state of West Virginia is on the verge of getting a reporter's privilege law, which journalists usually call a shield law. The state legislature passed the bill over the weekend and sent it to Gov. Earl Ray Tomblin. The state has been one of several in which journalists can cite previous court decisions, but not a statute to avoid revealing sources to which they have promised confidentiality. The District of Columbia, Kentucky and 38 other states have shield statutes; only Wyoming has no reporter's privilege in its Constitution, court decisions or statutes.

"The measure provides West Virginia reporters with a qualified reporter's privilege to refuse to disclose confidential sources, and documents that could identify confidential sources, in civil, criminal, administrative and grand jury proceedings," says the Reporters Committee for Freedom of the Press. With on exception, the law does not protect unpaid journalists; it defines "reporter" as someone who gathers and disseminates information to the public "for a portion of the person's livelihood."

The exception is that the law does cover student journalists. "This language puts West Virginia at the very forefront of the country in recognizing the value of student journalism and the importance of protecting students who are increasingly doing professional-caliber work," said Frank LoMonte, executive director of the Student Press Law Center. For background from the Reporters Committee on West Virginia case law and the bill's path through the Legislature, click here.

Electronic metadata are open, federal judge rules

"For the first time, a federal court has ruled that metadata -- information related to the history, tracking or management of an electronic document -- must be released if requested under the Freedom of Information Act," reports Christine Beckett of the Reporters Committee for Freedom of the Press.

U.S. District Judge Shira Scheindlin ruled Monday in the case of National Day Laborer Organizing Network v. Immigration and Customs Enforcement Agency. The labor group requested records in electronic form from ICE. "After significant delay, the agency provided the records, but did so by putting the them into a large, unsearchable PDF that lacked distinction within and lacked metadata," Beckett reports.

Scheindlin said that failed to meet the requirements of FOIA because the data were unusable and undefined. "There was no way to discern the beginning and end of individual records," Beckett explains. The judge said ICE's arguments were "lame."

Metadata are essential to using electronic records because they show "the government is not hiding anything," said Sunita Patel, attorney for the Center for Constitutional Rights, co-counsel and co-plaintiff in the suit. "It goes to the heart of FOIA."

The judge said metadata should be specifically requested, but ruled that because the labor group asked for electronic records in "native format," the original electronic format that contains metadata, that was sufficient to require ICE to provide the metadata.

She "conceded that not all metadata may fall under FOIA's 'readily producible' standard, noting that, in some circumstances, producing all metadata could be too burdensome for an agency," Beckett reports. "The court said the determination of what metadata must be produced should be conducted on a case-by-case basis, and depend upon the type of electronic record requested and how the agency maintains its records." The U.S. attorney handling the case declined to say if an appeal will follow. (Read more)

State releases records in baby's death at meth lab; newspapers seek more

UPDATE, Dec. 8: The judge yesterday ordered the state to give him all the records on the case by 10 a.m. today, along with a document list to give the newspapers. He said he would decide what records to make public. For a detailed story by the Herald-Leader's Beth Musgrave, click here.

A toddler who died last year at a methamphetamine lab near Monticello drank drain cleaner, which is used in making meth, according to records released by order of Franklin Circuit Judge Phillip Shepherd, the Lexington Herald-Leader reported Tuesday.

Attorneys for the Herald-Leader and the Courier-Journal are asking Judge Shepherd to hold the state Cabinet for Health and Family Services in contempt and to force it to release additional records related to the child's death still being held under seal.

The Herald-Leader had filed suit under the state's Open Records Act after the cabinet refused to release details in the death of 20-month-old Kayden Branham, right. The boy's father, Bryan Daniels, was charged with murder, and along with several others, with making meth. That trial is scheduled for January. Both the toddler and his mother, Alisha Branham, were under the supervision of the state system for abused and neglected children at the time of his death.

Both newspapers reported the records it received under Judge Shepherd's court order were incomplete, and some information contained in documents that were released had been redacted by the cabinet.

"The Herald-Leader strongly believes that the state should produce all records in this case, including any that reflect the cabinet's contact with the family and its conduct prior to Kayden's death," Editor Peter Baniak said in the newspaper's story. "Without such transparency, there is no way for the public to assess whether the state child-welfare system appropriately handled this case. That's why we took this case to court in the first place."

“They have not given us nearly all the records the judge ordered them to give us,” said Jon Fleischaker, a lawyer for The Courier-Journal. “I think there are major problems with their attempt to comply with the court order.”

In ordering the records released, Shepherd wrote, "It is not unwarranted for the public, and the press, to want to know what happened when a 20-month-old child in the care and legal custody of the Commonwealth of Kentucky winds up dead after drinking toxic substances in a meth lab."

For the full story in the Herald-Leader, go here. The Courier-Journal's story is here.