In late 2017 the Kentucky Center for Investigative Reporting undertook an in-depth examination of sexual harassment in state government by submitting requests to 30 state agencies for records relating to sexual harassment complaints.
What KYCIR discovered is that Kentucky's open records law mandates disclosure of records relating to sexual harassment — including the identity of the person against whom the allegations are made — in cases where the allegations are substantiated and in cases where the allegations are unsubstantiated.
The attorney general took this position in open records appeals dating back to 1996. He recognized that the public's interest in monitoring agency response to complaints of sexual harassment — the thoroughness of the agency's investigation and uniformity in imposing discipline regardless of the identity of the accused — outweighed the privacy interests implicated by disclosure.
The agencies to which KYCIR submitted open records requests apparently gave no deference to this line of authority, electing to withhold the names of public employees accused of sexual harassment from the records released to KYCIR and, in some cases, deny or ignore the requests entirely.
On appeal, the attorney general affirmed KYCIR's right of access to the records, included the names of the employees against whom allegations were made.
The attorney general's decisions were appealed to the Franklin Circuit Court. The Court affirmed the attorney general's position, twice ruling in favor of KYCIR in appeals filed by the Finance and Administration Cabinet and the Labor Cabinet and once in favor of the Courier Journal in an appeal filed by the Cabinet for Health and Family Services. Two of these cases, one involving the Finance Cabinet and the other involving the Cabinet for Health and Family Services have been appealed to the Kentucky Court of Appeals.
Records disclosed by the Labor Cabinet after entry of judgment against it by the Franklin Circuit Court contain shocking revelations of bureaucratic indifference to allegations of sexual harassment leveled against the employee whose identity it had attempted to protect.
This article details the conflicting responses KyCIR received to its requests in spite of the mandate of the open records law as construed by the attorney general — whose own conduct in responding to KYCIR's response was less than blameless — and most recently by the Franklin Circuit Court.
Note: Amye Bensenhaver has not been affiliated with the Bluegrass Institute since May, 2018. She is now affiliated with the Kentucky Open Government Coalition.
