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.

Source leaks documents to Kernel; UK to still sue

While the University of Kentucky has stated it will sue the school’s independent student newspaper, the Kentucky Kernel, the documents that UK refused to release were leaked to the Kernel.

A confidential source gave the newspaper 122 pages of documents about the investigation into Associate Professor James Harwood, who was accused of sexual impropriety.

The university would not confirm the documents were authentic. 

Harwood was charged by UK with two counts of sexual assault and two counts of sexual harassment by two complainants. However, several others were identified and interviewed by UK’s Office of Institutional Equity and Equal Opportunity. They told UK officials Harwood had made inappropriate comments to them or touched them inappropriately.

Harwood was able to resign and receive his pay through the end of August. No hearings were held on the charges. 

The Kernel learned of the resignation of Harwood, and 2015-16 Editor Will Wright sought UK records on the incidents under the state's Open Records Act. The university denied the request. Wright then appealed to the attorney general, who has authority under state law to review all denials of open records. The university refused to release documents to Attorney General Andy Beshear for review, and Beshear ruled the university had violated the Open Records Act.  Such a ruling has the force of law unless it is appealed to circuit court and overturned.

The university announced it would sue the Kernel to overturn the decision. After this leak of documents to the Kernel, the university reiterated that intention. A spokesperson for the victims told the Kernel they want the documents made public with their names redacted.

For more on the AG’s opinion on the case and the University’s response click here.

For more on the documents obtained by the Kentucky Kernel click here.

Even the governor is subject to open records requests

Many of the open records opinions issued by Kentucky's attorney general deal with local governments, but it should not be forgotten that the law applies even at the highest levels of state government.

This week, the AG's office released an opinion that concerned requests to Gov. Matt Bevin and his office.

In In re: Louisville Public Media/Office of the Governor, 16-ORD-039 (issued March 16, 2016), Louisville Public Media ("LPM") had two particular requests for the governor and his office.

First, LPM requested records from the governor's office that would demonstrate any meetings between the governor or his staff and University of Louisville President James L. Ramsey or the president's staff, according to the facts of the opinion.

Second, LPM requested records from the governor's office concerning communications between the Cabinet for Health and Family Services and the governor's office regarding abortion clinics, according to the opinion.

As to LPM's first request, the governor's office claimed that it had found one responsive email, but that it was preliminary in nature, and as such, was exempt from disclosure under the Open Records Act.

As to the second request, the governor's office claimed that the responsive emails that it had found were either preliminary in nature and, thus, exempt, and/or were exempt from disclosure based on attorney-client privilege.

LPM appealed the denial of its records requests, and the AG's office asked the governor's office for the responsive documents to review them in camera.

After reviewing the documents, the attorney general's office found that the governor's office was justified in withholding the email regarding the governor's schedule as preliminary and several of the emails responsive to the requests concerning the abortion clinics as either preliminary and/or based on attorney-client privilege.

However, the AG also found that two emails relating to the abortion clinics—one that only contained a fax number and one that contained a link to a Facebook post—were improperly withheld.

The opinion also found that the governor's office procedurally violated the open records act in not first detailing the reasons it had withheld responsive records concerning the governor's schedule, but that it had subsequently cured that violation by explaining its reasons for not disclosing the records on appeal.

Though not all responsive records were required to be disclosed in this case, individuals still should be mindful of their ability to request such records and should not be afraid to do so.

This opinion serves as an important reminder that individuals can request records from even the highest executive officer in the state.

The attorney general mentioned this opinion in a Lexington Herald-Leader article Monday concerning another opinion from his office, which found that Gov. Bevin does not have the power to remove duly appointed Kentucky Horse Park commissioners.

Open meetings law, the other aspect of government transparency

A government acts through its people, and the decisions of the government are often made during open meetings.

Though this blog often focuses on Kentucky open records decisions, the open meetings decisions issued by the state's attorney general also factor into the overall scheme of individuals' ability to keep an eye on state and local governments.

A recent open meetings opinion discussed one limitation placed on public agencies in holding meetings.

In re: Lawrence Trageser/Spencer County Fiscal Court, 16-OMD-036 (issued March 10, 2016), Trageser filed a complaint with the fiscal court on January 7, 2016, charging that magistrates had met with the sheriff in less than quorum meetings to avoid discussion of the sheriff's budget in a public meeting, according to the attorney general's opinion. Trageser urged that the meetings would have collectively constituted a quorum of the fiscal court. 

The magistrates responded to Trageser on January 11, in a reply prepared by the Spencer County Attorney, and acknowledged the meetings, according to the facts in the opinion. The magistrates also acknowledged that they would have constituted a quorum.

The baseline for Kentucky open meetings law appears in KRS 61.810(1). 

That statute states that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times . . . ." The statute then lists a number of exceptions to the general rule. 

Based on these facts between Trageser and the fiscal court, the attorney general's office found that the fiscal court had violated KRS 61.810(2). That statute reads:

Any series of less than quorum meetings, where the members attending one . . . or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.

The attorney general's opinion relied on its reasoning from an earlier instance that it described as "a nearly identical factual context" in which several members of the Butler County Fiscal Court had met with the county's sheriff, "in a series of less than quorum meetings, to discuss the sheriff's budget." 

Here, the AG's opinion discussed its earlier analysis that "'[t]he right of the public to be informed transcends any loss of efficiency,' and that the public’s right to be informed includes not only the right to know what decisions are made but how they are made." (The opinion cited to Lexington Herald-Leader Co. v. Univ. of Ky. Presidential Search Comm., 732 S.W.2d 884, 886 (Ky. 1987), and KRS 61.800.)

Finding that its decision concluding that magistrates for the Butler County Fiscal Court had violated the state's open meetings law, the AG opinion also found that the actions of the magistrates in Spencer County also constituted a violation of the act. 

A balancing of interests

Like so much else in the law, the Kentucky Open Records Act is an example of when a balancing of interests must occur.

The goal of the state's open records law is to promote transparency of government. See KRS 61.871. However, the obligation of public agencies to disclose certain documents is not unlimited. 

A recent attorney general's opinion dealt, in part, with one particular scenario in which a public agency can deny a records request: when the requester's actions are harassing to the governmental body.

In the matter of Minnie McCord and the Fleming County Board of Education, 16-ORD-021 (released Feb. 10, 2016), McCord had requested several types of records from the Board of Education, including financial records for specific years.

However, the Board denied her request, stating that the custodian of the records had "reason to believe that [her] repeated requests . . . [were] intended to disrupt the other essential functions" of the county schools. As such, the Board refused to permit McCord's inspection of or to provide copies of the records she requested.

The Board noted that McCord had previously requested numerous records, but then she never went to the Board's office to review those records. Further, McCord had a pending lawsuit against "the Board and/or its officers or employees." 

McCord appealed to the attorney general's office following the Board's denial of her request. In its analysis on this point, the attorney general's office quoted KRS 61.872(6), which states that:

if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.

In its response to McCord's appeal, the Board argued, relevant to the discussion here, that "McCord's repeated, voluminous requests were intended to harass the School District and to interfere with other essential operations of the School District."

The opinion, quoting one of its earlier opinions, stressed that harassment should only be invoked as an excuse "in extreme and abusive circumstances."

Based on the facts presented, the attorney general's office found no such scenario involving McCord. Instead, the attorney general's office found that the facts in McCord's case, including that she had once requested many records that she did not pick up and her "repeated requests to settle her litigation," did not demonstrate that the Board had met its high burden under the clear and convincing evidence standard required by state law.

By comparison, the opinion cited the facts of an earlier decision where harassment was found—where the "16th request [sought] almost 2000 emails, some consisting of multiple pages, on top of the approximately 17,000 pages of records . . . previously requested." In that case, the requester had not paid for the records.

However, here, McCord had only made one request and had only sought inspection, so nonpayment for records was not an issue. The attorney general's office recognized the Board's frustrations, but ultimately found that "although Ms. McCord's records requests and demands to settle litigation may rise to the level of clear and convincing evidence at some point, they do not at the time of the present appeal."

As such, the attorney general's office found that McCord's requests were not intended to disrupt the Board's essential functions. 

Other portions of this opinion dealt with the Board's denial of the specific records McCord requested. To see the full opinion, visit the attorney general's office website.

Reviewing Ky.'s open records, meetings laws

Editor's Note: I generally don't write these posts in the first person, but I thought one post doing so wouldn't hurt.

The ending of one year, and the starting of another, provides an excellent opportunity to look back on the past year. As cliche as it may be this time of year, I wanted to review some of the aspects in Kentucky open records and open meetings law from 2015.

The aim, as I have written before, of this blog is to provide the public with information on the state's open records and open meetings laws.

The attorney general's office releases new opinions every week or so, and though some opinions deal with seemingly mundane topics—for instance, procedural violations of the Kentucky acts—I believe highlighting all types of AG opinions is important because each opinion demonstrates in broader context how the state laws operate in practice.

Within the next few weeks, I will be receiving the first opinions of Andy Beshear's office, when he assumes his elected position after the new year.

In all the time that I have worked on this blog (three years), I have only read the opinions of Attorney General Jack Conway's office. I will be interested to see the style of Andy Beshear's opinions and to begin to recognize the different names of attorneys in his office.

Though I'm probably one of only a few people in the state who await the arrival of new attorney general's opinions concerning open records and open meetings issues, I look forward to each new batch because they show the development of the state's laws in practical ways.

For instance, certain aspects of Kentucky's laws seem awfully conspicuous—for example, records must actually exist for an individual to be able to request them from a state body.

But however obvious these principles may be, they are indispensable for individuals in Kentucky to know in order to be able to exercise their rights under the acts.

In 2016, I expect new advances in Kentucky's open records and open meetings laws, and I expect to write about ones that I think add to the greater narrative of shining light on the state's actions.

Happy New Year!

The ending of one's term, and the beginning of another's

In January, Kentucky will have a new attorney general when Andy Beshear takes office. (See a recent article by The State Journal in Frankfort).

During the closing weeks of 2015, current Attorney General Jack Conway's office will be issuing its final open records and open meetings decisions.

In early December, the office released several open records opinions.

One of them dealt with a seemingly obvious principle: records must exist for a public agency to be required to produce them.

In 15-ORD-217, in re: Bruce M. Tyler/Council on Postsecondary Education, the attorney general's office found that the Council did not substantively violate the open records act by denying a records request "where no responsive records existed."

In that case, Dr. Tyler had requested records relating to the resignation of the University of Louisville's provost.

In response to his request, the Council told Dr. Tyler that matters of employment at U of L for faculty and staff are under jurisdiction of the university's Board of Trustees. The Council further told Dr. Tyler that it did not have any correspondence with U of L concerning either his or the former provost's employment at the university.

When Dr. Tyler initiated his appeal with the attorney general's office, the Council argued that it did not have any records on the subject and that requests for information were outside the scope of the open records act.

As such, the Council argued that its response was sufficient, and the attorney general's office agreed.

"[A]n agency is not obligated to honor a mere request for information under the Open Records Act," the opinion read. "Furthermore, a public agency cannot afford a requester access to a record that it does not have or that does not exist."

This decision serves as a reminder to individuals making requests under Kentucky's open records act that they should be specific as to the records they desire to inspect.

Application of state law to public universities

Kentucky has nine publicly supported institutions of higher learning. (See http://cpe.ky.gov/institutions/)

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.