The thrill of victory and the agony of defeat: authorities' handling of open meetings and records disputes yields conflicting results

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In a short span of 24 hours Kentucky’s open meetings and open records laws were handed a significant victory and a serious defeat.

The thrill of victory: Bluegrass Institute v. Jefferson County Board of Education The victory occurred when the Bluegrass Institute and its Center for Open Government prevailed in an open meetings appeal involving the Jefferson County Board of Education.

On August 14, Assistant Attorney General James Herrick agreed with the Bluegrass Institute that a special meeting --  conducted by the Board of Education on  Sunday, April 30, in private law offices located in downtown Louisville --  violated the legal requirement that public agencies conduct their meetings “at specified times and places convenient to the public.”

JCPS argued that the meeting site was chosen to avoid inconvenience to JCPS staff and “conserve the considerable costs associated with opening the VanHoose Education Center on a weekend.”

Herrick rejected these arguments in his 17-OMD-161 ruling that “[a] public meeting must be held in ‘a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend.”

He was persuaded by  “common experience as well as the specific experience of” representatives of the Bluegrass Institute -- who were unsuccessful in their attempts to gain entry to the downtown office building  on a subsequent Sunday afternoon --  concluding that “it [is] reasonable to suppose that an ordinary member of the public might have been discouraged from trying to attend a meeting.”

“This is not a situation in which a suitable public building was unavailable,” Herrick wrote. “Here, in addition to the VanHoose Education Center, the Jefferson County Board of Education governs a system of approximately 174 schools,” containing suitable public meeting rooms.

“With such a selection of locations available in public buildings,” he concluded, “we cannot reasonably find it ‘convenient to the public’ to hold a public meeting in a private law office . . . based solely on unspecified ‘costs’ of opening the VanHoose building on a Sunday.”

The Bluegrass Institute was pleased with the open meetings decision. Our goal in bringing the appeal was to establish that meetings of public agencies must always be conducted at times and places convenient to the public – even if it causes inconvenience to the public agency – and we believe we achieved this goal.

The agony of defeat: Commonwealth of Kentucky, ex rel. Andy Beshear v. University of KentuckyOne day before receiving news of our successful open meetings appeal against the Jefferson County Board of Education, the Lexington Herald Leader reported that on August 10 the Fayette Circuit Court ruled in favor of the University of Kentucky in an opinion that will seriously impede the ability of the Attorney General to effectively discharge his statutory duties under the open records law. The court ruled that UK was not required to honor the attorney general's KRS 61.880(2)(c) request to review records -- if characterized by the university as "education records" -- for purposes of mediating an open records dispute.

Commonwealth of Kentucky , ex rel. Andy Beshear v. University of Kentucky, originated in an appeal filed by the Kentucky Kernel from the University’s denial of an open records request for the report of its investigation into allegations of sexual assault leveled by students against a professor who was permitted to resign from the university under very generous terms.

In correspondence directed to the attorney general after the Kernel initiated its appeal, UK  acknowledged the existence of a single oral complaint – subsequent events confirmed the existence of multiple written complaints – but relied on the attorney-client privilege and a federal law, the Family Educational Rights and Privacy Act (“FERPA”), to defend its denial of the newspaper’s request.

FERPA is intended to protect student education records from public disclosure, not to protect records relating to the educators who inflict injury on students.

Given this fact, the attorney general invoked KRS 61.880(2)(c) to request documentation from UK to substantiate its denial of the Kernel’s request including a copy of the report itself. In spite of the fact that KRS 61.880(2)(c) clearly authorizes this action, and assigns the burden of proof to the public agency, UK flatly refused to comply with this request.

In one of my last official acts as an assistant attorney general I wrote 16-ORD-161, concluding that UK had not met its statutorily assigned burden of proof and rendering a decision in favor of the Kernel.

I was unwilling to blindly accept, “without further proof in the form of a review of the report under KRS 61.880(2)(c) ‘for substantiation,’ that the report [,generated to comply with federal requirements, and not for the rendition of legal services, was]  attorney-client and work product privileged.”  Absent substantiation, I was also unwilling to defer to UK’s characterization of the report as a FERPA protected education record since it involved “records containing allegations of misconduct against a professor, not a student.”

In a 25 year career mediating open records disputes, I regularly employed KRS 61.880(2)(c) to ensure a fair and thorough review of the legal issues presented. I considered it the single most important tool in ferreting out the truth in an appeal.

And now the Fayette Circuit Court has declared the attorney general’s KRS 61.880(2)(c) authority forfeit in cases where a university invokes FERPA. If this ruling stands, the consequences will be serious, though perhaps not fatal, to the Attorney General’s review. While he can still require a university to meet its burden of proof that disputed records are education records through detailed description of the records, he will be constrained from reviewing the records to independently verify the university’s representations.

Under these circumstances, applicants may be forced to bypass the attorney general and proceed directly to circuit court for review of university denials based on FERPA  –  burdening the courts and incurring costs and attorneys’ fees along the way. Once on this slippery slope, who knows where it will lead?

Attorney General Beshear has announced his intent to appeal the circuit court’s opinion.  We commend him for doing so just as we previously commended him for intervening in the original action. Nothing less than the future of his office’s decades long role as a mediator of open records disputes may be at stake.