In a major victory for public university transparency, the Kentucky Supreme Court on August 14 denied the Kentucky State University Foundation's motion for discretionary review of a Court of Appeals' opinion affirming the foundation's public agency status. In so doing, the Court preserved the public's right of access to public university foundation records under Kentucky's open records law.
In a March 1, 2024, opinion -- Kentucky State University Foundation, Inc. v Frankfort Media, LLC. -- the Court of Appeals reasoned:
"[N]early every contractual obligation undertaken by the foundation is for the benefit and priorities of Kentucky State University. [Their agreement] does not contemplate the foundation having its own separate interests or missions; the foundation's mission is Kentucky State University’s mission – whatever the university chooses for that mission to be."
Because it is "established, created, and controlled" by KSU, the KSU Foundation is a public agency for open records purposes, and it's records are subject to public inspection.
http://opinions.kycourts.net/COA/2023-CA-000320.PDF
In light of the Supreme Court's August 14 order denying discretionary review, the Court of Appeals published opinion is now final.
A PERPLEXING APPEAL DOOMED TO FAILURE
The KSU Foundation pursued the open records appeal in stubborn defiance of decades of legal precedent and the express directives of the KSU Board of Regents.
Kentucky law is clear on the issue. In 1992, the Kentucky Supreme Court ruled in an open records case involving the KSU Foundation and The State Journal:
"There is no reasonable basis for excluding from the definition of a public agency the [KSU] board and its interlocking foundation. An interpretation of K.R.S. 61.870(1) 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."
https://casetext.com/case/frankfort-pub-v-kentucky-st-un-found
Ignoring this legal precedent, along with a 2021 open records decision issued by the Kentucky Attorney General, a 2022 opinion of the Franklin Circuit Court, and the 2024 Court of Appeals' opinion -- all determining that the KSU Foundation is a public agency for open records purposes -- the foundation exhausted all appeals, squandering foundation dollars intended for university use on a fruitless appeal in a period when KSU was under intense scrutiny for past financial mismanagement.
https://ag.ky.gov/Resources/orom/2021/21-ORD-179.pdf
https://bloximages.newyork1.vip.townnews.com/state-journal.com/content/…
https://www.insidehighered.com/quicktakes/2023/03/23/report-finds-syste…
https://www.usnews.com/news/best-states/kentucky/articles/2023-03-22/re…
THE FOUNDATION DEFIES THE BOARD OF REGENTS
Earlier this year, a newly reconfigured KSU Board of Regents -- intent on building a transparent and accountable university culture -- threatened to sever ties with the foundation if it pursued its open records appeal and continued to withhold foundation records from the board. In June, the board made good on this threat. The State Journal reported that regents unanimously voted to dissolve KSU's relationship with the Kentucky State University Foundation based on concerns about the foundation's lack of transparency, questionable stewardship of funds, and failure to align with KSU's mission "of solely supporting Kentucky State University’s students and programs."
https://www.state-journal.com/education/ksuf-to-k-state-president-pleas…
https://www.state-journal.com/education/k-state-board-of-regents-dissol…
Because the Court of Appeals' affirmed the Franklin Circuit Court's finding that the Foundation willfully withheld records and its award of The State Journal's attorneys' fees, the Supreme Court's refusal to review the appellate court opinion also means that the foundation is now on the hook for its own and The State Journal's attorneys' fees.
A SKILLED LEGAL TEAM SECURES THE PRINCIPLE OF PUBLIC UNIVERSITY TRANSPARENCY
The newspaper's committed and experienced legal team -- Suzanne Marino and Jeremy Rogers of Dinsmore & Shohl -- successfully fought to preserve the vital principle of public university foundation transparency not recognized in some states' public records laws.
https://www.insidehighered.com/quicktakes/2019/12/13/private-foundation…
https://www.thefire.org/news/open-records-request-reveals-donor-influen…
Along with Jon Fleischaker, Rogers -- who has served on the board of directors of the Kentucky Open Government Coalition since its creation in 2019 -- represented The Courier Journal in its 2003 open records victory in the Court of Appeals. In University of Louisville Foundation, Inc. v Cape Publications, Inc. d/b/a The Courier Journal, the Court of Appeals determined that the University of Louisville Foundation — "a nonprofit fiduciary holding funds for the benefit of a state organization" — was a public agency under the open records law and that its records were subject to public inspection.
http://opinions.kycourts.net/COA/2002-CA-001590.pdf
Rogers' and Marino's combined efforts thwarted the KSU Foundation's attempts at evasion and secured another great win for open government in Kentucky.
