Why did Attorney General Daniel Cameron withdraw his predecessor's intervening complaint in the ongoing open records litigation pitting Western Kentucky University against its student newspaper, The College Heights Herald?
A little background.
In 2016, the Office of the Attorney received an open records appeal from the University of Kentucky student newspaper, The Kernel. At issue was UK's partial denial of a request for records relating to the university's investigation into multiple complaints of sexual harassment leveled against a professor.
Characterizing them as "education records," the University denied The Kernel access to investigative records.
Following The Kernel's submission of the open records appeal to the Office of the Attorney General, the AG exercised his authority to request copies of the records to confirm or refute their status as "education records" — a term that has a particular legal meaning under state and federal law.
The University refused the attorney general's request, the attorney general ruled against the University — since it had effectively divested the attorney general of his ability to discharge his statutory function — and the University sued The Kernel to maintain institutional secrecy.
The Kernel's widened the scope of its search to other universities, including WKU. Meanwhile, The College Heights Herald undertook it's own investigation that included open records requests to WKU.
The same sequence of events unfolded with WKU refusing to honor the AG's request for sexual harassment investigative records it withheld from The College Heights Herald. Four years later, WKU's lawsuit against The Herald remains in the courts.
As these cases proceeded thru the courts, then Attorney General Andy Beshear intervened by filing a complaint to clarify the scope of his office's authority in open records appeals.
This is the intervening complaint Daniel Cameron withdrew.
So again, why did Cameron withdraw his predecessor's intervening complaint?
The answer is clear.
Former Attorney General Andy Beshear intervened in order to clarify his office's statutory authority to obtain disputed records for confidential review in an open records appeal — in the face of public agency recalcitrance — to ensure effective review of the issues on appeal.
As counsel for the newspaper Michael Abate, observes:
"It was a strong and important signal when the state's chief law enforcement officer and the office responsible for interpreting and implementing the Open Records Law stood alongside the student journalists being sued by their own university, an institution of the state."
Daniel Cameron — on the other hand — has consistently subordinated the attorney general's role in mediating open records disputes since taking office.
The decision to withdraw Beshear's intervening complaint in one of several open records cases in which his office's ability to discharge its open records duties was obstructed — here, by Western Kentucky University following the University of Kentucky's very poor lead — is only the latest evidence of Cameron's retreat from his statutory role.
Just ask The Courier Journal why it now routinely bypasses the Office of Attorney General and files appeals of public agency denials of open records requests in circuit court.
Just look at the paucity of facts and conclusory legal analysis in the three to four page open records decisions issued weekly.
Just note the virtual absence of citation to open records decisions issued by past administrations and the increasingly common departure from that body of authority in favor of nondisclosure.
While the yet to be decided issue in the open records dispute between the College Heights Herald and WKU — whether records relating to sexual harassment in a university setting are education records protected from disclosure under state and federal law — is unchanged, the case presented an opportunity for clarification of the attorney general's statutory authority.
No clarification is needed if the attorney general does not take his role as first line open records adjudicator seriously.
Meaningful review of disputed records is unnecessary for an agency rubber stamp.
