Court rules AG can enter lawsuit involving KSU, Kentucky Kernel

(Editor’s Note: In a similar case, there will be a hearing Monday, May 15 at 10:30 a.m. in Warren Circuit Court concerning the AG’s Office intervening in a lawsuit involving Western Kentucky University against the Kentucky Kernel and the College Heights Herald, the WKU student publication. The AG’s Office has notified Warren Circuit Judge Steve Wilson of the legal authority language used in the Franklin Circuit Court decision to allow the AG to intervene.)

By Brad Bowman, State Journal

Franklin Circuit Judge Thomas Wingate ruled recently that Attorney General Andy Beshear can join an open-records lawsuit between a student newspaper and Kentucky State University, saying the denial of Beshear’s authority to review disputed public records thwarts public interest in government transparency.

In October, the University of Kentucky’s student newspaper, The Kentucky Kernel, submitted an open-records request to state universities and colleges for information on Title IX sexual misconduct investigations of university employees in the past five years. KSU and Western Kentucky University, as well as UK, denied both Beshear’s office and the Kernel access to those records.

After a denial of an open records request, an appeal can be made to the Attorney General’s Office to dispute the denial. The office has 20 days to issue an opinion on whether the Open Records Act has been violated, and the opinion can be appealed in circuit court within 30 days. During the appeals process, under state statute the Attorney General’s Office has the statutorial power to inspect the disputed records confidentially. Unless it is appealed, the Attorney General Office’s opinion has the force and effect of law.

In April, KSU attorney Joshua Salsburey asserted that the university could not provide the records for Beshear’s confidential review, citing federal law such as the CLERY Act, the Violence Against Women Act and the Family Educational Rights and Privacy Act (FERPA). The same response given by both WKU and UK.

“The attorney general may intervene in this matter because an open records request is inherently in the public interest because it effects (sic) the people’s access to state information,” Wingate’s order says. “Any subversion of this authority inherently undermines the functioning of the Attorney General’s Office and it inhibits transparency in government operations. Disallowing the attorney general to act in accordance with its statutory mandate of reviewing appeals of open records requests could only thwart the public interest of transparency in government.”

Wingate ruled Beshear’s office had a right to intervene in the lawsuit and also confidentially review the disputed documents KSU has not provided.

Ahead of a May 15 hearing in a case involving WKU, the Kernel and WKU’s student newspaper, The College Heights Herald, Beshear’s office on Tuesday filed Wingate’s order as an exhibit supporting its right to confidentially review the disputed records.

Last year, Fayette Circuit Court Judge Thomas Clark ruled Beshear’s office had standing in the case against UK, but he sided with the university after the Kernel requested investigation documents regarding a professor in a sexual harassment case.

On Jan. 6, KSU’s Office of General Counsel responded to the Kernel’s request, saying KSU didn’t have any records categorized as “Title IX investigations into sexual misconduct allegations levied against university employees in the past five years,” as requested by the newspaper, but provided two letters to Beshear’s office “having to do with final agency action for a single case alleging sexual harassment by a university employee but did not provide any investigative records.”

Beshear ruled in January that the university violated the Open Records Act, and he filed a motion in March to intervene in KSU’s lawsuit appealing his decision.

“Sadly, Kentucky State University leadership took the position that many other public universities leaders have taken – that they are above transparency,” Beshear said in March. “A public university should be focused on strengthening its students and not having a legal battle with a student newspaper and my office. I’m hopeful that the university’s new president will step in and correct the situation by dropping the lawsuit and allowing my office to review the documents.”

A court date has not been set for any additional hearings in Franklin Circuit Court.

KSU spokeswoman Diane Hawkins said the university would not comment on the ruling. At press time, Salsburey had not returned phone calls seeking comment.

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