An editorial from the State Journal, a local newspaper that — like so many others — has limited resources to fight protracted legal battles.
Because the State Journal dared to inquire into expenditures of the Kentucky State University Foundation — a public agency per a 1992 Kentucky Supreme Court opinion, an intervening unpublished Court of Appeals opinion, a 2021 Attorney General’s open records decision, and a 2022 Franklin Circuit Court opinion — it must now expend these limited resources to defend the controlling legal authorities against a foundation that apparently has unlimited resources to keep the issue in the courts for years to come.
Frankfort Publ’g Co. v. Kentucky State Univ. Found., Inc., 834 S.W.2d 681 (Ky. 1992). https://casetext.com/case/frankfort-pub-v-kentucky-st-un-found
University of Louisville Foundation, Inc. v. Cape Publications, Inc., 2003 WL 22748265 at *7 (Ky. App. 2003) (affirming that subsequent “modification of KRS 61.870 would have no effect on the holding in [the 1992 KSU Foundation KORA decision].”
Kentucky State University Foundation, Inc. v Frankfort News Media, LLC, d/b/a The State Journal, No. 21-CI-00798 (Franklin Circuit Court, August 11, 2022)
Perhaps lawmakers, and the Council on Postsecondary Education, should consider whether this is responsible stewardship of university funds—from whatever source—or at least ask themselves why the KSU Foundation is hellbent on avoiding public scrutiny through records access.
Perhaps the recently reconfigured KSU Board of Regents should decide whether the tail isn’t wagging the dog in the face of overwhelming legal authority and deeply disturbing optics.
Perhaps the public should ask, “What is the KSU Foundation trying to hide?”
This much we know. Attorneys for the parties will be back in court on Monday, and the cost of litigating a settled legal question will continue to rise.
The State Journal editorial board writes:
“Franklin Circuit Court Judge Phillip Shepherd ruled earlier this month that the Kentucky State University Foundation (KSUF) — the non-profit fundraising arm of the institution — is a public agency and must turn over several records requested by The State Journal last year within a 10-day time span. But that may not be the end of the story.
“On Thursday, the foundation filed a motion seeking that the court’s ruling be made final and appealable — a sign that it intends to appeal the decision.
In its lawsuit brought against the newspaper, the KSU Foundation claimed it was not a public agency and therefore not required to release documents via the state’s open records laws. Among the records The State Journal is seeking are payments made to former KSU President M. Christopher Brown II to fund his travel and birthday parties as well as any payments of more than $1,500 made to any entity or individual.
“In its lawsuit brought against the newspaper, the KSU Foundation claimed it was not a public agency and therefore not required to release documents via the state’s open records laws. Among the records The State Journal is seeking are payments made to former KSU President M. Christopher Brown II to fund his travel and birthday parties as well as any payments of more than $1,500 made to any entity or individual.
“In May 2021, the newspaper submitted its original open records request to the KSUF and was denied. Four months later, The State Journal filed an appeal to the Office of the Attorney General. The KSUF argued that because it receives no public funding and is not controlled by the university that it is not subject to open records laws. It also noted that it has changed its structure since a 1992 Kentucky Supreme Court ruling determined it is a public agency and has full control over deciding whether to grant K-State’s disbursement requests.
“However, the Office of the Attorney General sided with the newspaper stating that the KSUF is still a public agency and therefore required to provide responsive records. In October, the foundation — represented by Frankfort attorney Ed Logan of Logan Burch & Fox — appealed the decision claiming that the attorney general’s office failed to properly interpret state law in deeming the KSU Foundation a public agency, stating that ‘a board must be “established, created, and controlled by a public agency” to be subject to the [Open Records] Act.’
“In his ruling, Shepherd cited that the KSU Foundation falls under two of the 11 subsections of KRS 61.870 because it is ‘established, created and controlled by the university’ and the manner with which ‘its board is appointed.’
The 10-day window for the KSUF to turn over the requested records is set to close this week and The State Journal has yet to receive the documents it seeks.
“For an institution that is already on thin ice — after a multimillion dollar bailout by the General Assembly — we expect more transparency. Though the foundation certainly has the right to appeal the AG and Franklin Circuit Court decisions, now would be a good time to admit defeat and start rebuilding the university’s reputation.”