UofL Foundation audit exposes willful obstruction of open records act

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Shocking revelations abound in the forensic audit of the University of Louisville Foundation, but none more shocking to proponents of open government than the revelation that the foundation conspired with its attorneys to conceal and destroy records that exposed financial abuses, brazenly documenting these activities in an electronic “paper trail.”

The audit describes a lack of transparency in the foundation’s deferred compensation plan that netted a dozen high-ranking administrators $20M over a period of years.

The audit quotes a 2008 email in which President James Ramsey’s chief of staff, Kathleen Smith, requested foundation counsel’s guidance  to “keep these [deferred compensation] participation agreements from being subject to ORR [open records requests]” based on her belief that “Dr. Ramsey does not want any of these to end up in the hands of the C-J [Courier-Journal].”This conduct continued in 2012 when, the audit reveals, Smith emailed the university provost, who had expressed concerns about “overcompensation,” reassuring her that “foundation retirement contracts” were “deliberately ambiguous because ambiguity is in the employee’s favor.”

And in a 2014 email quoted in the audit, agency counsel advised Ms. Smith by email that he “picked DCPA, LLC for deferred compensation program administrator,” to replace its former designation. She responded that whatever designation was selected, it “needs to be difficult to figure out for media.”

In the face of a 2003 Court of Appeals ruling – later affirmed by the Supreme Court -- that the foundation was “established, created, and controlled by a public agency,” namely the University of Louisville, and therefore itself a public agency subject to the open records law, officials engaged in a course of conduct aimed at evading public scrutiny through malicious evasion, obfuscation and secreting away of public records on non-foundation premises.

Worse still, the audit’s general findings indicate that UofL and the foundation “did not preserve all available computers and mobile devices utilized” by certain employees whose email accounts were placed on “litigation hold” from any records destruction. For example, the audit notes, UofL “erased and repurposed Dr. Ramsey’s hard drive” before the auditor was hired.

Additional instances of records destruction are recounted in newspaper accounts.

On the spectrum of abuses committed by UofL and the foundation that the audit exposed, contempt for the laws governing records management and inspection by high-ranking officials may be found at the lower end.

But the records tell the story of the abuse. They ensure accurate reporting by the media, including the Kentucky Center for Investigative Reporting. Over a period of years, KYCIR pursued multiple appeals to the attorney general’s office involving the UofL Foundation and fought for access to foundation records in the courts not once but twice.

The actions of UofL and its foundation are disheartening for those who hold fast to the belief – eloquently expressed by the Court of Appeals -- that the “Open Records Act is neither an ideal nor a suggestion.  It is the law. Rigid adherence to this stark principle is the lifeblood of the law which rightly favors disclosure, fosters transparency, and secures the public trust.” The commitment of investigative reporters --like the KYCIR staff -- to expose the agencies’ abuses is reassuring.