The plot thickens in the ongoing tale of University of Louisville abuses exposed in a forensic audit released in June. The disclosure that the University of Louisville erased former President James Ramsey’s computer – for the purported use of the acting president’s chief aide in an uncharacteristic money saving measure – was one of many offenses to the public’s right to know identified in the audit.

And now comes news that the university has denied an open records request for emails “that might shed light on the erasure of Ramsey’s computer.”  The Courier-Journal reports that the university relied on the exception to the open records law that authorizes law enforcement agencies, or agencies involved in administrative adjudications, to withhold records “that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by . . . premature release of information to be used in a prospective law enforcement action or administrative adjudication.”

History repeats itself.

In 1992, the University of Kentucky invoked this exception to deny the Courier-Journal access to its response to an official NCAA inquiry. The Kentucky Supreme Court summarily rejected this claim, reminding the university that “This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself conceded that the NCAA, a private regulatory entity, is the only ‘agency’ involved in ‘administrative adjudication.’ Therefore, KRS 61.878(1)[(h)] would not apply.”

Fast forward to 2017 and the University of Louisville raises the same defense. Here, however, the university does not assert that it is a law enforcement agency or an agency involved in administrative adjudication, but cryptically refers to an external investigation.

Although the Courier does not quote the full text of the university’s response – indicating only that the university “declined to disclose what agency is investigating” --  the article states that outside counsel for the university has “identified the state attorney general’s department of criminal investigations” as that agency.

The article goes on to quote counsel as having stated that “the AG’s office has asked the university not to release ‘materials compiled in the process of this investigation,” but this statement is otherwise unsubstantiated.

Moreover, when questioned about the university’s denial of the Courier’s request, the Attorney General’s spokesman pointed out that, in general, an agency relying on this exception to the open records law “must show why releasing the documents would hurt the probe. The university has not done that.” Absent such a showing – Kentucky’s courts have made abundantly clear – an agency cannot deny an open records request for investigative records.

And so the question again arises: what is the need for secrecy?

The open records law begins with a presumption that “free and open examination of public records is in the public interest.” Agencies are expected to release public records unless they are shielded from disclosure by one of the fourteen statutory exceptions and the need for governmental confidentiality outweighs the public’s right to know. The legislature directs that the exceptions “be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.” Additionally, the agency has the burden of proving that its denial was proper.

The university fails to prove that the attorney general’s department of criminal investigations – unnamed in its response – has requested that the university withhold the emails, fails to prove that disclosure of the emails would harm that investigation, and indeed fails to prove that the emails are “records compiled in the process” of investigation.

They are, in fact, records created in the ordinary course of business and nothing like an investigator’s notes, crime scene photos or witness interviews compiled in the process of detecting a statutory or regulatory violation.

The open records law requires disclosure of these emails.  Secrecy only postpones the inevitable end of the long university nightmare.