Beshear intervenes in court actions involving sexual misconduct investigations to protect OAG's ability to resolve open records disputes

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Attorney General Andy Beshear has intervened in open records appeals pending in the Fayette and Franklin Circuit courts, and is seeking to obtain permission to intervene in a similar appeal in Warren Circuit Court in cases involving his office (OAG) having access to information regarding Title IX sexual misconduct investigations of university employees.

His goal? To ensure that public agencies don’t deny his office critical information in deciding open records disputes by defying his staff’s requests for additional documentation from the agencies to substantiate their positions, which the law requires.

There are few, if any other, instances in which an attorney general has intervened in a circuit court appeal of his own office’s decision in an open records dispute, and the stakes couldn’t be higher.

KRS 61.880(2)(c) assigns the burden of proof in an open records dispute to the public agency and unambiguously states that in rendering a decision in such a dispute, the attorney general “may request additional documentation from the agency for substantiation. . . .[and] a copy of the records involved but they shall not be disclosed.”

Agencies that defy this provision have been sternly rebuked by the courts.

In Cabinet for Health and Family Services v. Todd County Standard, Inc., the court admonished the Cabinet’s “blatant[] refus[al] to respond to the Attorney General’s specific questions, . . .intentionally  frustrat[ing] the Attorney General’s statutory review under KRS 61.880.” That court concluded that an agency “cannot benefit from intentionally frustrating the Attorney General’s review of an open records request.”

The Todd County Standard opinion was issued in December 2015. Nevertheless, the University of Kentucky refused in 2016 to comply with the OAG’s requests for additional documentation as well as a copy of the disputed records in an appeal involving its own student newspaper, The Kentucky Kernel.

The OAG did not enjoy the same luxury of ignoring his statutory duties that UK apparently believed it enjoyed relative to KRS 61.880(2), and in 16-ORD-161  the OAG determined that UK failed to meet its burden of proof in denying The Kernel’s request. UK appealed that decision to Fayette Circuit Court. Other universities across the state followed suit in companion appeals involving their institutions – including Western Kentucky University’s appeal to the Warren Circuit Court – emulating the flagship university’s defiance of the unambiguous statutory requirement and “intentionally frustrat[ing] the Attorney General’s review under KRS 61.880.”Without this essential tool, the attorney general cannot conduct a meaningful review of the issues presented to him for resolution, which are part of the statutory duties of his office. He becomes a mere “rubber stamp” for agencies disinclined to expose their conduct to the light of public scrutiny.UK, KSU and WKU’s defiance undermines a critical function reserved to the OAG to reduce the number of open records appeals clogging the courts and to encourage expeditious dispute resolution at no cost to citizens.

The universities are wrong, and Andy Beshear is right.

–Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government. She is one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, having written nearly 2,000 legal opinions forcing government entities to operate in the open during a nearly 25-year career as an assistant attorney general in the Kentucky Attorney General’s Office.