Sexual harassment investigative records cases involving state agencies and state universities have dominated the open government headlines in the past two years.

The cases largely turn on the courts' interpretation of the personal privacy exception to the open records law and the extent to which it shields the identities of complainants, the accused (in unsubstantiated cases), witnesses, and other persons involved.

In the case of sexual harassment involving students at public universities, additional privacy laws — including the Family Educational Rights and Privacy Act — must be weighed in the balance.

Earlier this year, the Franklin Circuit Court issued an opinion in an open records dispute involving the Kentucky Finance and Administration Cabinet's denial of the Kentucky Center for Investigative Reporting's request for records relating to sexual harassment within the Cabinet.

The focus of that case was the Cabinet's reliance on the privacy exception to support blanket redaction of the names of complainants, the accused (in unsubstantiated cases), witnesses, and other persons involved. The names of persons against whom allegations of sexual harassment are substantiated are unquestionably public.

For the first time, a Kentucky court ruled that the names of all of these individuals must be disclosed.

In weighing the public's interest in confirming the thoroughness, fairness, and uniformity of the investigations — through inspection of the disputed records — against the privacy interest implicated by disclosure of the records, the Franklin Circuit Court concluded that the balance tips in favor of disclosure.

Critical to the court's analysis was the recognition that "records involving allegations of workplace sexual misconduct in a public agency—involving employees working on the clock and paid by tax dollars—are presumptively public."

The court observed, "If the allegations are substantiated, the public has a right to know if discipline has been properly administered. If the allegations are unsubstantiated, the public has a right to know if the internal investigation was thorough, unbiased, and competent, or whether it was a 'cover up' of misconduct based on personal or political favoritism."

In sum, the court held that "the conduct of public employees in the public workplace, on the public's dime, is a matter of legitimate public interest, and the transparency required by the Open Records Act is the primary safeguard to ensure public accountability."

The Finance Cabinet appealed the opinion of the Franklin Circuit Court to the Court of Appeals in May.

The Washington Spokesman-Review reports that an appellate court in that state has reversed a lower court opinion that reached the opposite result in a case involving access to a sexual harassment investigative file.

The acting president of Spokane Falls Community College resigned in the wake of allegations of sexual harassment, prompting the newspaper to request copies of the investigative records. The complainants were not students. Instead, they were the acting president's female subordinates.

In words that echo Kentucky's open records law, the Washington Court of Appeals declared: "The people do not give public servants the right to decide what is good and what is not good for the people to know. Free and open examination of public records serves the public interest, even though such examination may cause inconvenience or embarrassment to public officials or others. The public has a right to know who their public employees are and when those employees are not performing their duties."

The Washington court applauded the complainants "as important whistleblowers," recognizing that "their courage expands in light of the state's policy of demanding disclosure of the women's names in response to a Public Records Act request."

In a recent survey of state compliance with the open records laws, Washington and Idaho tied for the Number 1 position with a 65% compliance rating.

Kentucky was somewhere in the middle of the pack at Number 32 with a 39% compliance rating.

On the issue of access to the names of the complainants and other persons identified in sexual harassment investigations, we lead Washington. But it's case has proceeded further through the appellate courts than ours.