Attorneys for two state cabinets — the Kentucky Labor Cabinet and the Finance and Administration Cabinet — filed briefs this week in support of the cabinets' position that the Franklin Circuit Court improperly awarded the Kentucky Center for Investigative Reporting attorneys' fees and costs incurred in open records litigation.

The cabinets asked the circuit court to reverse two 2018 attorney general's decisions determining that the agencies violated the open records law.

In both cases, the cabinets asserted that they properly withheld the identities of employees against whom allegations of sexual harassment were made but not substantiated.

In April, 2019, the circuit court rejected the Labor Cabinet's position and awarded KyCIR $17,000 in attorneys fees and costs. In May, the circuit court rejected similar arguments advanced by the Finance Cabinet and awarded KyCIR $19,000 in fees and costs.

The court found that the cabinets "willfully withheld" the names of their employees.

"Willfulness" the courts explain, "connotes that the agency withheld requested records without plausible justification and with conscious disregard of the requester's rights."

In a brief filed earlier this week, the Labor Cabinet argues that it acted in good faith in withholding the name of an employee. KyCIR reports that it is the cabinet's position that it should not be punished "for its interpretation of the law."

In a brief also filed earlier this week, the Finance Cabinet argues that "public employees do not categorically surrender all their privacy rights by choosing to serve the Commonwealth."

However beguiling these "arguments" may be, public agencies are not entitled to their own legally unsubstantiated and unsupportable interpretation of the law. They do not have discretion to adopt an interpretation of the law that is at odds with the overwhelming weight of legal authority.

In open records decisions dating back to the early 1990s, the attorney general recognized that "in weighing the right of individual privacy against the right of the public to monitor the conduct of its servants, we find that complaints of sexual harassment and consequent disciplinary action, or the decision to take no action, are matters of legitimate public concern which outweigh the privacy rights of the public servant."

Continuing, the attorney general's open records staff observed, "sexual harassment complaints are of a uniquely sensitive nature. Conduct giving rise to such complaints can only be characterized as misconduct of the most egregious character, and a matter in which the public has at least as great, if not greater, interest than other forms of misconduct. Accordingly, we do not believe that the particular complaints at issue in this appeal, and consequent disciplinary actions or decisions to take no action, should be excepted from the 'general rule of inspection and its underlying policy of openness for the public good.'"

The Labor Cabinet case is an object lesson in why we cannot rely on public agencies to be forthcoming with records relating to sexual harassment that exclude employees against whom allegations are made but not substantiated.

KyCIR subsequently reported that the employee whose identity the Labor Cabinet originally withheld avoided disciplinary action for well documented instances of sexual harassment by means of a hastily arranged transfer to another agency. "Let that agency deal with the employee whose conduct might well warrant termination," the Labor Cabinet's reasoning appears to have been.

If you have ever questioned the logic and "fairness" of the line of authority mandating disclosure of records relating to substantiated and unsubstantiated allegations of sexual harassment, read and listen to this KyCIR report.

https://kycir.org/2018/12/14/how-a-kentucky-state-employee-kept-his-job…

As the Franklin Circuit Court observed, the public has a right to know that the cabinets' Investigations into allegations of sexual harassment were "thorough, unbiased, and competent," and that the discipline imposed, or the decision not to impose discipline, was supported by the facts uncovered in the Investigation.

If these cabinets want to go tilting at legal windmills — without supporting legal authority — and they are unsuccessful, they can expect the courts to award attorneys' fees and costs incurred by prevailing parties who are hauled into court to defend well-established law.