University of Louisville receives a failing mark from the attorney general in open records 101

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In a recent blog, the Bluegrass Institute lamented the University of Louisville Foundation’s flagrant disregard for the open records law as well documented in the foundation’s June 8, 2017 forensic audit.

Mislabeling records to avoid detection, secreting records away in nonpublic places to mislead applicants, and destroying records to forever impede the public’s right to know, the foundation’s culture of secrecy rivals that of the Cabinet for Health and Family Services in the child fatality records litigation that resulted in the imposition of over $750,000 in penalties and attorneys’ fees in excess of $300,000 against the cabinet.

What, if any, penalties the foundation faces, its reputation is, and for the foreseeable future will be, severely compromised.

We were therefore dismayed to discover that the University of Louisville itself was censured for ignoring the basic requirements of the open records law by the Kentucky Attorney General in a decision issued on June 22.In 17-ORD-120, the attorney general determined that the university violated KRS 61.880(1) by failing to respond to the Kentucky Center for Investigative Reporting’s request for athletic association board members’ conflict-of-interest forms within three business days forcing KyCIR to initiate an appeal after 12 business days and at least two follow up inquiries to the university to ascertain the status of its request.

KRS 61.880(1) establishes the requirements for agency response to an open records request. It states,  “Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.”

It was only after KyCIR submitted an appeal to the attorney general that the university responded, attributing the delay to the fact that its records custodian had been called for jury duty, and ignoring its duty to ensure the uninterrupted processing of open records requests even in her absence.

In other words, the university offered no plausible explanation for the delay.

To add insult to injury, the university elected to withhold information from the conflicts forms – many of which appear to have been generated after KyCIR submitted its request – without identifying, in even the most general terms, the nature of the information withheld.

The university invoked the  exception to the open records law generally protecting personal privacy and federal and state laws specifically protecting student education records but gave no indication how these exceptions apply to the information it withheld.

As the Kentucky Supreme Court has observed, “The agency bears the burden of proof . . . and what it must prove is that any decisions to withhold responsive records was justified under the Act.”

In a hypothetical university curriculum guide, this is Open Records 101. It’s about as basic and easily understandable as any provision of the open records law. And the University of Louisville, following in its foundation’s “proud” tradition, has received a failing mark.