Franklin Circuit Court judge instructs reporters on the importance of the open records law.

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The sparsely attended hearing conducted in the Franklin Circuit Court on September 20 belied the importance of the issue before the court.

Judge Thomas Wingate clearly understood the importance of the issue.

What was that issue?

Whether a public university can ignore the express language of a statute that authorizes the Kentucky Attorney General to obtain and examine -- but maintain the confidentiality of -- records relating to allegations of sexual harassment leveled against university employees in order to determine the propriety of the university’s denial of a request for those records?

Under Kentucky’s Open Records Law, the Attorney General is required to review public agency denials of requests for agency records and issue decisions stating whether the agency violated the law in denying the requests. Those decisions -- referred to as open records decisions or ORDs -- “have the force and effect of law” if not appealed to the appropriate circuit court within 30 days of issuance.

The single most important tool available to the Attorney General in discharging this statutory duty -- the tool that enables him to independently verify that an agency’s denial is supported by law -- is under assault by three public universities: the University of Kentucky, Western Kentucky University, and Kentucky State University.

Each university received an open records request from the University of Kentucky’s student newspaper, The Kernel, each located records confirming incidents of sexual harassment of students by university employees, and each denied The Kernel access to the records based on a federal law prohibiting disclosure of student “education records.”

When The Kernel appealed those denials to the Attorney General under the statute described above, each university refused to honor the Attorney General’s statutorily authorized request to examine the disputed records so that he could independently verify that the records relating to sexual harassment of students by university employees were or were not, in fact, federally protected “education records.”

Because the Attorney General could not substantiate the universities’ claim of exemption, he ruled against the universities and in favor of The Kernel. The universities responded by suing The Kernel and its student editor.

And, for the first time in the forty plus years since the enactment of the Open Records Law, the Attorney General intervened in the open records dispute between the universities and The Kernel to preserve his office’s statutory right to confidentially review agency records in open records disputes. Until recently, agencies have more or less willingly cooperated with the Attorney General by honoring his requests for the records to ensure proper resolution of the open records issue presented to him on appeal.

The Open Records Law assigns the burden of proving that a denial is proper to the universities in the same section of the same statute that authorizes the Attorney General to obtain disputed records for purposes of substantiating an agency’s denial before rendering an open records decision. Moreover, Kentucky’s  courts have declared that an agency “cannot benefit from intentionally frustrating the Attorney General’s review of an open records request; such result would subvert the General Assembly’s intent behind providing review by the Attorney General.”

For these reasons, Judge Wingate repeatedly asked counsel for Kentucky State University why his client objected to providing the disputed records to the Attorney General for statutorily authorized confidential review.

Why, indeed?

For all the university’s overblown rhetoric concerning the dire consequences of disclosure of sexual harassment records to the Attorney General under an unambiguous statutory mandate, its position is based on a single nonbinding  “opinion letter” issued by the federal Department of Education Family Policy Compliance Office to the Texas Attorney General in 2006.In the University of Kentucky’s case, it is more likely based on the non-disparagement clause in the attractive separation agreement it entered into with its rogue professor.

WKU and KSU followed its highly questionable lead.

In the course of this hearing, Judge Wingate repeatedly emphasized the importance of the open records issue presented and the role of the Attorney General. As the parties concluded their arguments, and the courtroom began to fill for the next hearing, he reminded those who had just arrived what the next hearing was about. “Bourbon,” he derisively declared more than once.

He then directly engaged the reporters who were gathering for the hearing on the Pappy Van Winkle heist. He admonished them for their failure to cover the open records hearing that was concluding and suggested that a bourbon heist should not command the level of media attention that a case involving the media’s lifeblood -- the open records law -- commands.

We are grateful to the Attorney General for his unflagging commitment to preserving the statutory mechanism so vital to the meaningful discharge of his duty under the open records law. But for his candor and indignation -- not to mention his unexpected shout out from the bench -- the Bluegrass Institute Center for Open Government wishes to express its appreciation to Judge Thomas Wingate.