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The Kentucky State University Foundation has elected to ignore past opinions of Kentucky's appellate courts — determining that it is a public agency for open records purposes — and appeal a recent Attorney General open records decision affirming that the Foundation is subject to the law in a current records access dispute with the State Journal.

The Foundation's position is based on the supposition that there is an old and a new open records law, and that the 1992 Supreme Court opinion declaring that it is a public agency for open records purposes — reaffirmed by the courts in 2003 — is no longer controlling due to statutory revisions in 1994.

But the Court affirmed the 1992 Opinion in 2003, a decade after the open records law was amended.

As the State Journal asserted in its appeal to the Attorney General:

"The Foundation reiterates its argument that it is neither 'a public agency as defined by KRS 61.870(1)' nor an agency of KSU, focusing on 'dramatic changes' in the statute defining the term 'public agency' in the Open Records Act as well as in 'the operation of the Foundation and Kentucky State University' since 1989 when the case holding that the Foundation is a public agency for open records purposes was decided in the Franklin Circuit Court.

"The Foundation does not address the 1992 Kentucky Supreme Court opinion affirming the Franklin Circuit Court opinion, Frankfort Publishing Inc., v Kentucky State University Foundation, Inc., 834 S.W.2d 681 (Ky. 1992) much less the Court's reasoning in Cape Publications. Inc., v. Univ. of Louisville Found., Inc.,260 S.W.3d 818 (Ky. 2008) to the effect that:

"'The public has a legitimate interest in the functions of the Foundation. As noted above, the Court of Appeals determined that the Foundation is a public agency within the meaning of the Open Records Act, and that ruling has not been disturbed by this Court. The Court of Appeals' conclusion was predicated on the finding that the Foundation and the University essentially act as one and the same, and that the Foundation was established, created, and wholly controlled by the University. As a public institution that receives taxpayer dollars, the public certainly has an interest in the operation and administration of the University. The Foundation's stated goal is to advance the charitable and educational purposes of the University of Louisville. To this end, it solicits, receives, and spends money and other assets on behalf of the University. The public's legitimate interest in the University's operations then logically extends to the operations of the Foundation.'

"Notwithstanding the KSU Foundation's protestations that it has 'disaffiliated' from the university by resolution, relocated off campus, reconfigured its board membership, and amended its articles of incorporation, no one of these factors, or even all of these factors, is dispositive of its status as a public agency for open records purposes.

"Like the University of Louisville Foundation, the Kentucky State University Foundation does not, and cannot, dispute that its purpose is to 'advance the charitable and educational purposes of the University' and to 'solicit, receive, and spend money and other assets on behalf of the University.'

"Nor does or can the Foundation dispute that it was established and created by the University in 1968 and that the University continues to exercise extensive control over the expenditure of Foundation funds and distribution of assets. Indeed, in its original response to The State Journal's request, the Foundation plainly acknowledged that all disbursements/distributions are dependent on 'president, faculty, or staff approvals.'

"The less than 'arms length' relationship between Kentucky State University and its Foundation is confirmed by the University's website, which directs individuals hoping to provide financial support to a webpage on the university's website — not the foundation's — which sends would-be donors to the same KSU page. Additionally,checks made payable to the KSU Foundation are to be mailed to an on-campus building to the attention of the school's office of institutional advancement instead of the KSU Foundation's nearby facility. Here, as in the case involving the University of Louisville Foundation, for purposes of soliciting contributions, Kentucky State University and its Foundation act as one and the same in the acceptance and disbursement of funds. The Foundation is a public agency pursuant to KRS 61.870(1)(j).

"As for the dramatic changes in the definition of the term 'public agency,' it is useful to remind the Foundation that the Court of Appeals, in the University of Louisville Foundation case, relied upon the 1992 Supreme Court's KSU Foundation ruling:

"'An interpretation of K.R.S. 61.870(1), which does not include the [KSU] Foundation as a public agency is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law. The obvious purpose of the Open Records law is to make available for public inspection, all records in the custody of public agencies by whatever label they have at the moment.'

Frankfort Publishing Inc., v Kentucky State University Foundation, Inc., 834 S.W.2d 681 (Ky. 1992).

"Indeed, the Court of Appeals expressly recognized the similarities between the University of Louisville Foundation and the KSU Foundation, except for the composition of the Board of Directors, a distinction it found 'insignificant.' Univ. of Louisville Found. Inc., v. Cape Publs., Inc., (No. 2002-CA-001590-MR) 2003 Ky. App. Unpub. LEXIS 1370.

"The State Journal posits, as did the Court of Appeal in 2003, that 'Under the former language of KRS 61.870 the KSU Foundation was determined to be an "agency thereof" of Kentucky State University. This "agency thereof" language was replaced, in part, with the "established, created, and controlled by a public agency" language, at issue in the present case. We believe this modification of KRS 61.870 would have no effect on the holding in Frankfort Publishing. We believe the expressed intent of the Supreme Court would be to hold [both] the University of Louisville Foundation [and the Kentucky State University Foundation] public agenc[ies] for purposes of the Open Records Act.'

"If anything, the General Assembly broadened the scope of the definition of 'public agency' by amending the definition to include the 'established, created, and controlled language.' The KSU Foundation can make no tenable claim that the Supreme Court's 1992 opinion declaring it a public agency for open records purposes is no longer legally binding on it."

Despite recent revelations concerning financial mismanagement at KSU, the admitted role KSU officials played in approving Foundation disbursements, and singularly damning optics, the Foundation will expend public funds to evade accountability.

As KSU seeks a taxpayer bailout to rescue it from its current financial crisis, the tenuous claims advanced by its Foundation in support of secrecy must yield to the strongly substantiated public interest in its Foundation records requested by the State Journal.

It was secrecy that got Kentucky State University in trouble to begin with.


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