Attorneys for The State Journal and Kentucky State University appeared in Franklin Circuit Court on Monday morning for a hearing on the newspaper’s motion “to clarify the status of the requested records and to request that the Court compel the Foundation to produce the requested records.”

In May 2021, The State Journal requested “copies of records related to payments made to a specific individual for a two-year period, as well as ‘payments made for the purposes of parties celebrating [the specific individual’s] birthday[,]’” as well as “‘records or documentation reflecting payments

of more than $1,500 made to any entity or individual[.]’” 

That “specific individual” was then-KSU president Christopher Brown. 

The KSU Foundation resisted disclosure, asserting that it was not a “public agency” for open records purposes — notwithstanding a 1992 Kentucky Supreme Court opinion declaring that “[a]n interpretation of K.R.S. 61.870(1) [defining ‘public agency’], which does not include the Foundation as a public agency, is clearly inconsistent with the natural and harmonious reading of K.R.S. 61.870 considering the overall purpose of the Kentucky Open Records law” and a open records decision resolving the current open records dispute in favor of The State Journal in 2021.

https://casetext.com/case/frankfort-pub-v-kentucky-st-un-found

https://ag.ky.gov/Resources/orom/2021/21-ORD-179.pdf

Franklin Circuit Court Judge Phillip Shepherd rejected the Foundation’s arguments in an opinion issued on August 11, 2022, declaring that “as an arm of KSU [that exists solely] for the purpose of fundraising and support of KSU’s students, faculty, programs and mission,”the foundation is accountable to the public through its records. 

https://bloximages.newyork1.vip.townnews.com/state-journal.com/content/…

https://kyopengov.org/blog/major-win-open-government-franklin-circuit-c…

“If the principal (KSU) is subject to the Open Records Act,” Judge Shepherd reasoned, “then the agent (KSU Foundation) must also be subject to the Open Records Act.”

Were it otherwise, the court continued, “the plain requirements of the Open Records Act would be ridiculously easy to circumvent, the stewardship of funds held in trust for a public university would be shielded from public scrutiny, and the purpose of the Open Records Act would be completely thwarted.”

The Franklin Circuit Court ordered the Foundation to produce documents responsive to the State Journal’s Open Records requests “within 10 days of the entry of [the] Order.”

That court-imposed deadline came and went, and the Foundation produced no records. 

At an August 29 motion hour, counsel for the Foundation stated that documents responsive to The State Journal’s requests had been produced in discovery. The newspaper disagreed.

In its motion to compel, The State Journal identified multiple discrepancies and omissions. It was the remaining disputed records that the parties debated in Judge Shepherd’s court on Monday. 

The KSU Foundation’s attorney stated in court that a search of Foundation records produced additional records. Those records reached State Journal attorneys Jeremy Rogers and Suzanne Marino on Monday. 

Given recent public admissions that KSU’s records “were in no condition to be audited”following the resignation of former President Brown as well as the departure of everyone on that board of regents, it is possible, even likely, that some financial and operational records  responsive to The State Journal’s request do not exist. 

https://www.state-journal.com/education/ksu-takes-steps-toward-an-exter…

Assuming no further issues relating to the records requested and ultimately disclosed, the only matter on which the Franklin Circuit Court must rule is an award of costs, attorneys fees, and penalties to The State Journal.

Whether the KSU Foundation will appeal the underlying legal issue — whether it is a public agency for open records purposes — to the Kentucky Court of Appeals is still unclear.