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KSU Foundation logo and page one of Courr of Appeals opinion

The Kentucky Court of Appeals today reaffirmed that the Kentucky State University Foundation is a public agency, as defined in the open records law, and that its records are subject to public inspection.

Welcomed news for The State Journal -- which filed the initial open records request -- and its attorneys, Dinsmore & Shohl's Jeremy Rogers and Suzanne Marino. Indeed, welcomed news for all Kentuckians -- but not entirely groundbreaking.

In 1992, the Kentucky Supreme Court ruled in an open records case involving Frankfort Publishing Company -- now doing business as Frankfort Newsmedia, Inc., ("The State Journal,") -- and the KSU Foundation, that "[t]here is no reasonable basis for excluding from the definition of a public agency the [KSU] board and its interlocking foundation. An interpretation of K.R.S. 61.870(1) 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."

In the face of this 1992 Kentucky Supreme Court opinion, the 2003 case affirming the public agency status of the University of Louisville Foundation, a 2021 open records decision issued by the Kentucky Attorney General, and a 2022 opinion of the Franklin Circuit Court -- all resolving the issue of the Foundation's status in favor of open records access -- the KSU Foundation pursued an appeal at taxpayer expense in a period when the university itself was under intense scrutiny for past financial mismanagement.………

Rejecting the Foundation's argument that the circuit court placed "undue weight" on the memorandum of understanding between KSU and its Foundation that drove the discussion of university "establishment, creation, and control," the court observed:

"To begin, there is no dispute that Kentucky State University established and created Appellant, and Appellant characterizes itself as existing solely for the benefit of Kentucky State University. To that end, Kentucky State University and Appellant executed a Memorandum of Understanding (MOU) on March 11, 2019, the purpose of which was 'to advance the mission of Kentucky State University.' The MOU further states: '[Appellant] exists to raise and manage private resources supporting the mission and priorities of the University.' And, '[Appellant] is dedicated to assisting the University in the building of permanently restricted, temporarily restricted, and unrestricted funds and in addressing, through financial support, the long-term-academic and other priorities of the University.'

"A review of the MOU shows that nearly every contractual obligation undertaken by Appellant is for the benefit and priorities of Kentucky State University. The MOU does not contemplate Appellant having its own separate interests or missions; Appellant’s mission is Kentucky State University’s mission – whatever the university chooses for that mission to be."

In reaffirming the Supreme Court's 1992 opinion, the court referenced an unpublished 2003 Court of Appeals' opinion affirming the status of the University of Louisville Foundation as a public agency governed by the open records law -- and recognizing that "The University of Louisville Foundation is very similar to the KSU Foundation[,]" -- and rejected the KSU Foundation's attempt to retrofit itself to avoid the application of the open records laws and these opinions. 

Univ. of Louisville Found., Inc. v. Cape Publications, Inc., No. 2002-CA-001590-MR, 2003 WL 22748265, at *7 (Ky. App. Nov. 21, 2003)

Further, the court affirmed the Franklin Circuit Court finding that Foundation records were willfully withheld and the award of attorneys’ fees, remanding the case to the circuit court "for a supplemental award of fees incurred in this appeal.”

Congratulation to The State Journal and it's courageous staff and management, as well as to attorneys Suzanne Marino and Jeremy Rogers -- the latter of whom has served on the board of directors of the Kentucky Open Government Coalition since its creation in 2019. 

In these dark legislative times, it is reassuring that the courts continue to implement the statutory mandate of the open records law and its underlying policy recognizing that "free and open examination of public records is in the public interest."…