As the ink dries on the last bills from the 2024 legislative session to be signed into law or vetoed, we offer a final reminder of the importance of the Commonwealth's open records laws and what Kentuckians stand to lose if we permit our lawmakers and governor to modify those laws -- on the thinnest of legal pretexts -- with the goal of advancing an anti-open government endgame.
On April 22, The State Journal reported that Kentucky State University "is 'freezing' its relationship with the Kentucky State University Foundation."
https://www.state-journal.com/education/k-state-freezing-relationship-w…
https://www.newsbreakapp.com/n/0sZtUkgl?pd=0BlI8zft&lang=en_US&s=i16&se…1714059637
What does this have to do with open records and public agency oversight?
Literally everything.
In a letter to alumni and supporters, the KSU Board of Regents explained this unusual, perhaps unprecedented, action:
"Donors entrusted their funds to the foundation with the expectation that they would be utilized for the betterment of our beloved institution.
“However, recent events have cast doubt on the transparency and stewardship of these funds.”
"Despite the university’s repeated and written requests for records and invitations from the Board of Regents to participate in committee meetings to foster open dialogue, the foundation has chosen to pursue legal action to keep their records hidden from the public and, presumably, our institution.
"The Board of Regents cannot remain idle as the foundation continues to spend funds fighting a lawsuit to prevent the disclosure of their records."
The referenced lawsuit -- paid for with funds intended "for the benefit of Kentucky State University or for any student, faculty, or staff member, or any line of work, teaching, or investigation of Kentucky State University" -- began with an open records request submitted by former State Journal reporter, Austin Horn, to the foundation in May 2021 -- a dark period in KSU's history.
https://kysufoundation.org/
Now a politics reporter for The Lexington Herald Leader, Horn requested documentation from the foundation related to soon to be deposed KSU President M. Christopher Brown's "travel and birthday party expenses and any payments over $1,500." The foundation denied the request, asserting that it is not a public agency subject to the open records law.
The ensuing scandal toppled the Brown administration, revealed a university in near financial collapse, resulted in sweeping oversight and reform, and -- most importantly in our context -- exposed a singularly recalcitrant university foundation.
And this is only one of many recent examples of why Kentucky's open records laws matter.
Open government is responsible government.
Three years after the foundation denied Horn's original request -- prompting an open records appeal to the Kentucky Attorney General and three subsequent rulings in Horn's favor by the Attorney General, the Franklin Circuit Court, and the Court of Appeals -- the foundation continues to squander resources "intended for the benefit" of KSU to defend the legally unsupportable position that it is not a public agency for open records purposes in defiance of precedent dating back to 1992.
https://kyopengov.org/law/ag/2021/21-ord-179
https://bloximages.newyork1.vip.townnews.com/state-journal.com/content/…
https://law.justia.com/cases/kentucky/court-of-appeals/2024/2023-ca-032…
https://casetext.com/case/frankfort-pub-v-kentucky-st-un-found
In the earliest of these governing authorities, the Kentucky Supreme Court declared:
"An 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. 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."
https://casetext.com/case/frankfort-pub-v-kentucky-st-un-found
(Note: an adopted then "unadopted" committee sub to the thankfully unsuccessful bill that threatened the open records laws in the last session, House Bill 509, would have redefined the expansive definition of "public agency" to exclude everything but "governmental entities" -- arguably removing the foundation from the open records laws after July 15, the effective date of new legislation.)
https://www.ag.ky.gov/Resources/Opinions/Opinions/Opinion%20of%20the%20…
The KSU Foundation's desperate attempt to subsequently "distance" itself from the university to evade public oversight under the Supreme Court's 1992 opinion -- a futile and even laughable undertaking in the eyes of each of these adjudicative bodies -- has now been flatly rejected. But the foundation persists in its campaign to avoid public accountability, pursuing a last gasp effort to resuscitate this terminal open records case against The State Journal. In so doing, the foundation raises every conceivable "red flag."
Out of the ashes of the Chris Brown debacle rose a new Kentucky State University and new leadership. If the board's letter is an accurate indicator, it is a KSU that has finally come to terms with the value of transparency and responsible governance. The board's decision to "freeze" relations with its secretive foundation unless and until the foundation abandons its frivolous open records litigation against The State Journal -- and makes a full financial accounting to the university and its regents -- gives us reason to believe that KSU is turning the corner.
"If the foundation continues to refuse to align with our mission of solely supporting Kentucky State University’s students and programs, as well as continues with the obstruction of transparency of funds to benefit said students with their lawsuit, we will be prepared to dissolve our relationship with the foundation and request an immediate transfer of all funds to Kentucky State University," the board has advised alumni and supporters.
Assuming the KSU Board of Regents makes good on this threat, it's action is deserving of praise. The board's April 21 letter may not entirely restore public confidence in the institution, but it reaffirms the value and importance of the open records laws and reminds us that we can ill afford to allow lawmakers, and a governor, to undermine them on a patently false "privacy" premise.
Remember this as a new legislative session begins in January 2025.*
* At the time of posting, we learned that KSU's National Alumni Association had issued a letter in which its leadership questioned the Board of Regents decision to "freeze" is association with the foundation, criticized the board's decision to make the controversy public, and called for cooperation between the university and foundation.
As one who is professionally acquainted with past transparency issues at the university -- dating back to the early nineties -- who has closely followed the current foundation's open records lawsuit against The State Journal, and who views the foundation's duty of financial and operational transparency to the university and its board as "neither an ideal nor a suggestion, [but instead] the law," I view the association's letter as counterproductive.
https://caselaw.findlaw.com/court/ky-court-of-appeals/1726554.html
But for these unusual circumstances, and the Auditor of Public Accounts specific charge to the administration and board in the 2023 university audit to "require monthly or quarterly reporting of available funds held at the Foundation," it seems unlikely the university and board would gratuitously make these problems public. The fact that it did must be construed as compliance with the auditor's recommendation and a positive step toward greater fiscal responsibility, improved governance, and enhanced transparency.
https://www.auditor.ky.gov/Auditreports/Miscellaneous/2023KSUSpecialExa…
