Nine pages or 15,000? After four years of battling in court, UK gives records to Herald-Leader

By Linda Blackford, Lexington Herald-Leader

It’s taken four years, but the Lexington Herald-Leader has finally prevailed against the University of Kentucky in an open records case that should have ended shortly after it was filed.

It’s taken four years and four courts to decide that UK did not have the right to withhold documents that would explain why it paid $4 million back to the federal government because of a cardiology clinic it acquired in Hazard. Although the Herald-Leader prevailed at all levels of the case, from the Attorney General’s office to the Supreme Court, UK kept fighting to keep this public business hidden away.

When the Kentucky Court of Appeals ordered UK to turn over related documents, UK attorneys said only nine pages were relevant. When the Herald-Leader challenged that, UK turned over the real number — at least 15,000 pages.

In all, this case has cost taxpayers roughly $118,000 in legal fees to an outside law firm in the past four years. That’s small potatoes at a school with a $2 billion budget. But it’s still public money used in a misguided and stubborn quest to show that UK knows best and the public does not need to be aware of what the state’s flagship university is doing.

SECRETS, SECRETS

It all started with a secret meeting.

On May 2, 2016, the UK Board of Trustees attended their regular dinner gathering the night before their monthly meeting. But they neglected to announce the main course: A Power Point presentation by a national healthcare lawyer who explained why UK had suddenly paid $4.1 million back to the federal Medicaid and Medicare programs that had been charged by a UK cardiology clinic in Hazard.

The Lexington Herald-Leader challenged the meeting as being illegal under the state Open Meetings law, and asked for a host of documents, including audits of the clinic. UK refused, citing two exemptions to the Open Records law: That the documents were preliminary (even though the payments had been made and the clinic had been sold) and that they were protected under attorney-client privilege. So the case went to the state Attorney General.

The Attorney General's Office said it would review the documents “in camera,” or privately, to see if they should be released. UK refused, and appealed to Fayette Circuit Court.

Circuit Judge Pamela Goodwine said UK should turn over the documents. UK handed over records detailing its attorney’s $1 million in billing and the Power Point presentation that was given to the board. But it refused to release additional records, including audits, and appealed the case to the Kentucky Court of Appeals.

The Kentucky Court of Appeals flatly rejected UK’s argument that the records were preliminary and agreed with Tom Miller, the Herald-Leader’s attorney.

“The University’s position is novel, but we do not find any authority supporting it,” the decision says. “Indeed, there is no dispute that the University took its final action based upon the information revealed during the audits. Records which are of an internal, preliminary and investigatory nature lose their exempt status once they are adopted by the agency as part of its action.”

UK then asked the Kentucky Supreme Court to review the decision. The Supreme Court declined to hear the case.

It returned to Fayette Circuit Court, where both Judge John Reynolds and his successor, Judge Julie Goodman, ordered UK to give the documents to the Herald-Leader, which it did last week. In coming weeks, the Herald-Leader will read through all of them and report to the public exactly what UK was trying to hide.

There are larger principles at stake than the fate of one clinic. In recent cases, UK, led by General Counsel William Thro, has argued that it is above the law, above the private scrutiny of the Attorney General, and above the public interest.

It is difficult to understand this recalcitrance, which not only keeps what could be short-lived controversies in the public eye for years, but makes President Eli Capilouto’s claims of openness and transparency look hollow. We’ve seen the same stubbornness in a far more serious case, that of the student newspaper, the Kentucky Kernel, and its quest to uncover the truth about the abuse of students in a sexual harassment case involving a professor. The Kernel is also represented by Miller.

UK’s blanket denial of documents was also overturned by the Court of Appeals and is now before the state Supreme Court.

“Here, there is more at stake than simple curiosity. The public has an interest in the investigative methods used by its public agencies and to know that a publicly funded university has complied with all federal and state laws,” Judge Kelly Thompson of Bowling Green wrote in the Court of Appeals decision. “In this instance, the university has not yet made any attempt to comply with the Open Records Act in any meaningful way. It has taken the indefensible position that the records are exempt because it says they are and it must be believed. That position is directly contrary to the goal of transparency under the Open Records Act.”

A DISTURBING TREND

As UK points out, it does respond quickly and positively to 90 percent of the numerous information requests it receives every year.

“There have been a handful of cases where we have sought to protect records,” said spokesman Jay Blanton. “Those handful of cases revolve around three issues and exceptions that the law – and our moral obligations – provide for: protecting the privacy of students, victims and patients; protecting attorney-client communications and work product and protecting the preliminary recommendations of administrators to ensure the kind of candid conversations and dialogue necessary to get at the facts.”

Still, in this kind of case, UK’s thwarting of the Open Records Act is costing it both good will and good money. It is a tax-payer supported institution, devoted to learning, open minds and service to the Commonwealth. Its residents have a right to know what it is doing. This fight has done nothing for that greater good.

The case also shows the importance of Kentucky’s robust open-records laws, and highlights an important issue now at stake in the shifting and challenging economic climate affecting local media. For decades, the Herald-Leader and other local newspapers in Kentucky and nationally have championed transparency, open records and open meetings as watchdogs of public agencies and government at all levels.

That role is more important today than ever as public institutions like UK increasingly push back against laws that require the public’s business to be done out in the open.

This case took four years, wound its way to the Kentucky Supreme Court and back, and involved thousands of dollars in legal fees paid by the Herald-Leader, with support from the Kentucky Press Association.

Amye Bensenhaver, a former assistant attorney general who wrote numerous open-records and open-meeting decisions, said the Herald-Leader decision is an important one.

“The court’s analysis in this case will be regularly cited to refute agency attempts to broadly construe the preliminary documents exception — long considered the most abused exceptions — and the attorney-client privilege/work product doctrine — rising stars in the galaxy of overused exceptions,” she noted. “The final victory is the Herald-Leader’s and ours.”

National report gives data on records decisions, notes staff attorneys give state agencies an edge; expert says noncompliance is likely to increase

Based in part on a post by the Kentucky Open Government Coalition

The National Freedom of Information Coalition recently issued a white paper, ”Blueprint to Transparency: Analyzing Non-compliance and Enforcement of Open Records Laws in Select U.S. States.”

Kentucky is one of the states that is featured. The white paper gives recent data showing widespread violation of the Kentucky Open Records Act, and notes the disadvantage records requesters face when fighting with taxpayer-paid lawyers — an issue currently before the Kentucky General Assembly.

NFOIC reviewed open-records decisions by the Kentucky attorney general in 2016 and 2017 revealed a high prevalence of noncompliance: Almost half of open-records decisions in 2016 and 2017 exhibited a violation of the state Open Records Act (49 and 48 percent, respectively).

Former assistant attorney general Amye Bensenhaver, co-founder of the Kentucky Coalition for Open Government and primary author of open-government decisions for the attorney general for 25 years, told NFOIC that she expects noncompliance will grow because she sees "now-common impediments to access that were uncommon in the past—agency failure to conduct an adequate search for responsive records; agency rejection of requests as overbroad; unjustified agency delays in producing public records. The list of evasive tactics is growing."

Of the 511 decisions NFOIC reviewed, 74 (17%) found that an agency improperly withheld records; 60 (12%) found an improperly stated exemption. Louisville lawyer Jon Fleischaker, chief author of the records law, said public agencies often cite improper exemptions and ignore settled law.

“You have public officials that are reaching,” Fleischaker said. “And if they have a lawyer and they go to the books they’ll figure out that there are a lot of cases that say ‘No, they can’t do that. This has already been decided.’”

Also among the most common types of violations are those based on time, such as failing to respond to a request or allow inspection in a timely manner; 84 of the 511 records decisions (about 16%) exhibited a such violations, which are treated as procedural as opposed to substantive violations.

“I don’t consider, and I know Fleischaker doesn’t consider, a procedural violation a petty violation. It’s still a violation,” Bensenhaver said.

Playing with public money

Open-records decisions have the force of law, but the losing party can take the case to circuit court, and state agencies often do. Any civil penalties for violations fall on the agency, not the individual officials.

Because taxpayers cover the cost, a state agency has the resources — in the form of attorneys on the state payroll — to devote to litigation and the appellate process, allowing the state to appeal as many times as allowable to avoid or delay disclosing the records.

Unlike requesters, the public agency usually does not incur hourly attorneys fees.

“They’re using their time [on the public records dispute] instead of someplace else ... but it’s easy to hide that expense,” Fleischaker said. “It goes toward a different line item: Personnel. And nobody goes back to look at that stuff.”

Jason Riley of Louisville's WDRB-TV said some state agencies feel they are exempt from the law since penalties aren’t rigorously enforced against them: “Some agencies know how to work the system in their favor so as to not have to provide records they don’t want to provide unless a citizen or media outlet is willing to pay a lot of money and wait.”

Bensenhaver says no other state agency is as notorious for violating the records act than the Kentucky State Police. In the decisions where KSP was a party in 2016 and 2017, the attorney general found the agency in violation of the records act 19 times, or 59% of the time.

Riley found KSP was the most frequent violator of the act over the last five years​, after conducting a review​ of attorney-general decisions.

Bensenhaver, Riley and Fleischaker said the KSP frequently appeals decisions, which lengthens litigation and makes proceedings more expensive for records requesters.

“We won about $11,000 in fines and attorney fees earlier this year” from the KSP, Riley said, “but they have appealed that ruling.”

Large local governments also have attorneys on staff, but many if not most use contract attorneys and thus incur hourly fees.

House Bill 232, sponsored by Rep. Maria Sorolis, D-Louisville, would require agencies to pay attorneys’ fees if a court finds a record was willfully withheld; her HB 309 would award fees when there is no “justiciable reason” for an agency's denial of a complaint that it violated the Open Meetings Act. Neither bill has been posted for committee consideration; Sorolis is a Democrat, newly elected to a House with a Republican supermajority.

The national report says, “According to a ​2010 examination of state transparency laws​, the vast majority of state jurisdictions explicitly either allow for, or mandate, attorney fee shifting in open-government dispute cases because these disputes confer a societal good, not just personal benefit . . . to ensure that plaintiffs are able to find lawyers to represent them; to attract competent counsel to seek redress of statutory rights; and to even the fight when citizens challenge a public entity.”

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.”

Beshear's open records decisions are undoing Conway's last-minute bomb

By Amye Bensenhaver
for the Scripps Howard First Amendment Center

On Jan. 15, Attorney General Andy Beshear moved closer to overruling a heavily criticized open records decision issued by his predecessor, Jack Conway, on Conway's last day in office in 2015.

AG Conway’s open records ruling
In the 2015 decision, Conway concluded that communications concerning public business that is conducted by public officials and employees on privately owned devices are not accessible under the Open Records Act. The rationale for the rules was those records are not “possessed” by the public agency they serve. This decision was then cited by Sen. Damon Thayer in 2018 as the basis for his ill-fated proposal to exclude “emails, texts, or calls on devices paid for entirely with private funds and which do not involve government email accounts” from the broadly worded definition of the term “public record” in the open records law.

Conway’s 2015 decision ignored both the expansive definition of the term “public record” and years of precedent that had guided his office’s interpretation of the law. That precedent recognized that “[i]n the end, it is the nature and the purpose of the document, not that place where it is kept, that determines its status as a public record.”

In addition, Conway’s ruling ignored an ever-growing body of law outside Kentucky declaring that “an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them” maintains them on a private device.

Fundamental to this rule of “constructive agency possession” is the recognition that the purpose of public access laws is not served if an official or employee “can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain.” It makes as much sense, the reasoning goes, to say that the official “could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.

Although Conway discouraged the use of private devices in conducting public business, he left the door open for widespread abuse. Public officials and employees wishing to evade scrutiny—whether through their records or their meetings—received a license to do so through the use of privately owned devices.

Recognizing the threat to public access that Conway’s 2015 decision represented, the open records staff within the attorney general’s office thereafter attempted to minimize the decision’s potentially harmful impact.

In December 2017, the office issued a decision in which it determined that the University of Kentucky improperly allowed an employee to conduct public business on his private email account by automatic forwarding of all messages on his public account to the private account. The attorney general, then Andy Beshear, characterized this practice as “the functional equivalent of conducting public business solely on a private email account” and declared that the university “systematically failed in its duty to properly maintain its public records.”

In February 2018, the attorney general’s office adopted this position when it held that an Erlanger city official improperly conducted public business on her AOL account and failed to retain those emails. In so doing, the office again found a systematic failure to properly maintain public records.

In 19-ORD-011 (the 11th open records decision of 2019), Attorney General Beshear inched closer to overruling Conway’s decision by declaring that communications concerning a proposed ordinance, conducted by a Park Hills city councilman on a private email account maintained on public equipment, constituted public records under the open records law. The disputed emails, which were submitted to the attorney general for confidential inspection, confirmed that the councilman “used his private email account with the intent to shield the communications from the public” in the belief that he would receive and “use” more candid advice to revise the ordinance and thereby secure city council support.

Relying on open records decisions issued before and after Conway’s 2015 decision, the Jan. 15 decision concluded that because records “used” by an agency are subject to the law “regardless of where they are located or whose ‘personal property’ they are considered,” the emails in dispute were “public records subject to public disclosure unless an exception applies.”

It remains now for Attorney General Beshear to formally overrule Conway’s 2015 open records decision and to declare that all public official and public employee communications concerning public business that are transmitted on public or private devices or accounts are public records—albeit not in all cases open records—to eliminate the confusion and curb the abuses that resulted from that decision.

Amye Bensenhaver served as an assistant attorney general for 25 years, specializing in open records and open meetings appeals. Now retired, she continues to advocate for transparency and accountability. She is a graduate of Centre College and the University of Kentucky College of Law.

2018 in review: Open government defeats and victories

From the viewpoint of an advocate of government transparency, 2018 was a year of some wins and some losses. 

Legislative defeats: 2018’s long legislative session dealt the open records and open meetings laws a substantial blow with the enactment of three new statutory exceptions. HB 302 erects an absolute barrier to public oversight of procurement processes, including those conducted under the widely known Model Procurement Code. KRS 61.878(1)(o) authorizes nondisclosure of all records relating to a procurement until a contract is awarded or the process is cancelled. A corresponding open meetings exception, KRS 61.810(1)(n), authorizes “selection committees, evaluation committees, or other similar groups” established under state procurement laws to conduct “meetings. . . to select a successful bidder for award of a state contract” in secret. 

HB 302 also created a new exception to the open records law for “communications of a purely personal nature unrelated to any governmental function.” KRS 61.878(1)(p) was the result of a hastily brokered compromise between legislators who advocated redefining the term “public record” to exclude public officials’ “emails, texts or calls on devices paid for entirely with private funds and which do not involve government email accounts” and open government proponents who, recognizing that the transaction of public business on private devices and accounts to evade public scrutiny is an increasingly common practice, vigorously objected.

The legislature also amended a 24-year-old open meetings provision. KRS 61.826 was originally enacted to promote public attendance at public meetings conducted in a single site by video teleconferencing the meetings at various meeting sites across the state with restrictions aimed at protecting the public’s rights under the open meetings law. As amended by HB 592, KRS 61.826 abandons the law’s original intent, shifting the long-recognized preference for the physical presence of public officials at public meetings. Now officials may participate by remote electronically.  This eliminated the law’s original protections for the public’s rights.

Conversely, HB 373, “An Act relating to disclosure of body-worn camera recordings,” provided a model for measured and thoughtful legislative response to challenges presented by evolving technology and record-keeping systems. The newly enacted KRS 61.168 affirms the application of the open records law, as well as laws relating to records management found in Chapter 171, to body-worn camera recordings, striking a balance between the public’s interest in monitoring police activity and individual privacy interests as well as the interests of law enforcement agencies.

Judicial victories:  The courts countered these defeats with a series of victories for the public’s right to know. 

On September 14, the Kentucky Court of Appeal ruled that a university directed audit of documentation relating to physician medical services and billings at an affiliated clinic must be disclosed.  In University of Kentucky v. Lexington H-L Services, Inc. the court rejected the university’s “novel” and expansive interpretation of the preliminary documents and attorney client/work product exclusions in favor of a narrow interpretation of these exclusions. UK has petitioned the Kentucky Supreme Court for review.

In  Finance and Administration Cabinet, Department of Revenue v. Mark F. Sommer and Tax Analysts, issued on November 1, the Supreme Court recognized the public’s right of access to “great bodies of information related to the reasoning and analysis of the Department of Revenue with respect to its administration of our tax laws.” The Court determined that final rulings issued by the department in tax assessment protests that are not appealed to the Board of Tax Appeals are subject to public inspection after personal identifiers are redacted from the rulings. A motion for reconsideration is pending in the case.

On December 14 the Court of Appeals issued an opinion in Purdue Pharma Inc. v. Boston Globe Life Sciences Media LLC d/b/a STAT, affirming a circuit court ruling that unsealed documents obtained by the Kentucky Attorney General in a lawsuit against Purdue, the manufacturer of OxyContin, and sealed under the terms of a 2015 settlement agreement. The court reasoned that disclosure of the documents would enable the public to “assess whether [the] government[‘s] decision to compromise a valuable claim of the people adequately protected their interest or maximized the claim’s value.” The documents were to remain sealed for 30 days while Purdue weighed its legal options.

In other litigation, the Court of Appeals heard oral arguments on September 25 in The Kernel Press, Inc. v. University of Kentucky. The case drew national attention in September 2016, when CNN reported on it and September 2017, when it was cited by the Associated Press as one of several examples of public agencies “turning the tables by suing public records requesters.” In this case, the university sued its student newspaper and the newspaper’s editor after the newspaper received a favorable ruling from the attorney general in an appeal from the university’s denial of a requestfor records relating to sexual harassment complaints leveled by students against a professor. The newspaper awaits an opinion from a newly assigned panel of the court following the defeat of one of the original panel members in the November election.  

Also on September 25, a Jefferson Circuit Court determined that Louisville Metro Government must release the details of its failed proposal for the second Amazon headquarters. The city subsequently announced that it would appeal the circuit court’s ruling to the Kentucky Court of Appeals. 

On October 5, the Court of Appeals denied the Cabinet for Economic Development’s request that it stay enforcement of the Franklin Circuit Court’s ruling that the Cabinet must disclose the names of shareholders in Braidy Industries, Inc., to the Courier Journal. In 2017, Braidy, a private company, received a $15 million direct investment from the state in exchange for a commitment to build a $1.68 billion aluminum rolling mill near Ashland. Because the court ruled on the cabinet’s motion to stay enforcement only, the case remains on appeal.

On October 11, the Franklin Circuit Court issued opinions in two open records cases pitting the Kentucky Center for Investigative Reporting against state agencies that partially denied its requests for records relating to complaints of sexual misconduct in the workplace. In both cases, the court rejected the agencies’ invocation of the privacy exception because “the primary actors and witnesses are public employees, and all conduct involved took place in the public workplace,” concluding that records “involving allegations of workplace sexual misconduct in a public agency. . .must be characterized as presumptively public.”

A third case involving the Courier Journal’s access to records relating to allegations of sexual harassment leveled by a former high-ranking social services official against a male colleague at the Cabinet for Health is pending in Franklin Circuit Court.

Audits confirm the need for greater transparency:  In the midst of these victories and defeats, Auditor of Public Accounts Mike Harmon concluded the first audit of the Administrative Office of the Courts in July that confirmed a lack of “sufficient policies . . . to provide transparency and oversight” within the judicial agency. In September, he announced the findings of an examination of KentuckyWired, the statewide broadband project that has been plagued with cost overruns and missed deadlines, recognizing the need to ensure that “future projects are done in a responsible and transparent fashion.” In December, Harmon released an audit of the Department for Fish and Wildlife that again confirmed a “greater need for [the agency] to act in a responsible and transparent fashion” and recommended “a change in culture.” In announcing the results of an audit of the Kentucky Retirement Systems in December, Harmon advised that a separate examination, relating to the Retirement Systems’ compliance with Senate Bill 2 (2017) which included specific requirements aimed at transparency, is under way.

In spite of the legislative defeats Kentucky’s open government laws suffered in 2018, these cases and Harmon’s findings, reaffirm that “[t]he public’s ‘right to know’ under the Open Records Act is premised upon the public’s right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.”

– By Amye Bensenhaver, former assistant attorney general

Senator files, then quickly withdraws, bill that would have impeded open records law

A bedrock principle of the open records law has recently come under fire.

BR 821, pre-filed by Danny Carroll (R-Paducah), was quickly withdrawn after access advocates vociferously criticized the bill. Among other offensive proposals, the bill would permit courts to impose agency attorneys’ fees on open records requesters in cases in which the court found the requesters’ purpose “inproper.” The latter term was vaguely defined as a request submitted for a “frivolous purpose.”

Asked what he thought of the bill, CNHI reported on January 10, Governor Matt Bevin responded, “I think what should be looked at is: who’s asking for what.” He noted that “outside groups that are around the country that don’t have any presence or direct-seeming interest in Kentucky,” use the law to advance a political agenda/candidate, requesting “reams and reams and reams of information that take hundreds and thousands of hours sometimes” for public agencies to fulfill. Such requests, the governor suggested, impede the Kentucky media “who are asking legitimate questions about information.”

“What” is being requested is a legitimate focus of any open records analysis. “Who’s asking” is not.

Kentucky’s open records law guarantees the right of “any person” to inspect and copy any nonexempt public record. Analysis of an open records dispute between a requester and an agency resisting disclosure, a 1994 open records case declared, “does not turn on the purposes for which the request for information is made or the identity of the person making the request” since “the legislature clearly intended to grant any member of the public as much right [of] access to information as the next.”

In opinions dating back to the 1980s, the attorney general emphasized that “agencies should have uniform policies regarding inspection of their records.  If one person (in the absence of a court order) is allowed to inspect a record, all should be allowed to inspect. . . . It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement.”

Simply put, “selective disclosure” of public records violates Kentucky’s open records law. 

Not all state sunshine laws guarantee access without regard to the requester’s identity or purpose. Tennessee, for example, limits records access to residents of the state and requires proof of residency as a condition to access. This aspect of Tennessee’s law has been severely criticized.

There are, of course, reasonable limits on Kentucky’s “identity/purpose neutral” open records law.

In the 1990s, lawmakers amended the law to permit public agencies to recover higher copying fees for reproduction of public records requested for commercial use, defined as “any use by which the user expects a profit either through commission, salary or fee.” The definition expressly excludes use by print or electronic media, for the purpose of broadcasting the news, and use in litigation and claims settlement. Since that time, agencies have also been permitted to verify the requester’s intended commercial use, require a contract for the intended commercial use, and obtain penalties for misrepresentation of the intended commercial use.

Lawmakers have also erected substantial barriers to the rights of prison inmates to inspect public records. And Kentucky’s statutes contain an ever-growing body of confidentiality statutes, such as those governing access to accident reports, that authorize inspection of certain public records by certain identified subsets of requesters only.

As for open records requests for “reams and reams and reams of information that take hundreds and thousands of hours sometimes” for public agencies to fulfill, the open records law already contains an “unreasonable burden/intent to disrupt essential agency functions” exception that authorizes public agencies to deny such requests if the agencies can substantiate this basis for denial by “clear and convincing evidence”º a “high proof threshold.”

“The clear and convincing standard which is built into this provision is sufficient,” the attorney general observed in the 1990s, “to discourage abuse by public agencies. In other words, the provision is expansive enough to authorize judicious use, where warranted, but narrow enough to prevent profligate use, where unwarranted.”

Kentuckians should resist legislative efforts to empower the courts to decide that a request is improper under a vague standard of frivolousness or any standard other those that currently exist. We should also resist efforts to empower agencies to consider the identity of the requester in responding to a request or to evade a request because the response requires “time and manpower.” These core principles of Kentucky’s open government laws should not be disturbed. 

– By Amye Bensenhaver, former assistant attorney general 

  

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.