Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Kentucky Kernel editor-in-chief and reporter William Wright appeals the University of Kentucky's denial of his request "to obtain copies of all records detailing the investigation by the University of Kentucky or the Office of Institutional Equity and Equal Opportunity of a tenured professor and any allegations of sexual harassment, sexual assault, or any other misconduct by [the professor]." 1 The university promptly denied Mr. Wright's request explaining:
all records detailing the . . . investigation from the University's Office of Institutional Equity and Equal Opportunity are unable to be released pursuant to KRS 61.878(1)(i) and (j). These records are considered preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of a final action of a public agency; or preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended and are exempt from disclosure. Additionally, some documents in the file are protected pursuant to KRS 61.878(1)(a), as they contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. Finally, some documents are protected pursuant to the Kentucky Rules of Evidence 503, as they are considered attorney-client/ work product privileged and are exempt from disclosure. 2
The University did not explain the application of these exceptions to the records withheld in contravention of KRS 61.880(1) (requiring the agency "to include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld " and not to simply recite the language of the exception.) (Emphasis added.)
Upon receipt of this office's notification of the Kernel's appeal, the University expanded on its position. Noting that it had provided Mr. Wright with "a wide variety of materials -- including the agreement with the accused professor" but failing to identify any other records released to Mr. Wright or to provide this office with copies of the records released, notwithstanding our KRS 61.880(2)(c) request for copies of the released records, the University maintained that:
. because the University's investigating unit, the Office for Institutional Equity and Equal Opportunity lacks authority to take final agency action and can only recommend action, all investigative reports are preliminary recommendations per KRS 61.878(1)(i) and (j); 3
. given the nature of the underlying complaint in this case, KRS 61.878(1)(a) erects a barrier to disclosure insofar as "it surely encompasses all investigative records that specifically identify a student or which concern sexual activity of an individual or individuals." 4
. because "General Counsel" relied on the investigative reports in formulating legal advice to senior administrators, the reports are attorney-client/ work product privileged. 5
Unable to resolve the issues on appeal based on the University's original and supplemental responses, on May 26, 2016, this office requested additional documentation from the University, as well as a copy of the records released to the Kernel and a copy of the records the University withheld from the Kernel , "for substantiation. " KRS 61.880(2)(c). The University, in response, introduced new arguments in support of its denial, and argued that this office has a very limited role under KRS 61.880(2). The University did not directly, or, in some cases, even indirectly, address our inquiries and refused our request for copies of the disputed and undisputed records, themselves. 6
The University misconstrues the meaning and import of KRS 61.880(2)(c). That statute provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation . The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.) Within a single sentence, the legislature assigns the burden of proof to the agency resisting disclosure and invests the Attorney General with the authority to "request additional documentation for substantiation ." (Emphasis added.) The University's refusal to honor the Attorney General's requests suggests that it views these requests as either adversarial or a form of "advoca[cy] for the requester," or both. 7 The juxtaposition of the assignment of the burden of proof to the agency and the Attorney General's authority to request additional documentation "for substantiation" establishes the contrary. As we observed at page 2 of 12-ORD-220, "when denied the opportunity to review the [disputed] records [or documentation necessary 'for substantiation' ] 'the Attorney General's ability to render a reasoned open records decision [is] severely impaired.'" Citing 96-ORD-106, p. 5 and 10-ORD-079, p. 5. Such is the case in the appeal before us. It is the Attorney General's duty to conduct a meaningful review and issue an informed and reasoned decision, guided by the statutorily assigned agency burden of proof. Accordingly, we find that the University of Kentucky failed to meet its burden of proof in denying the Kentucky Kernel's request and must make immediate provision for Mr. Wright's inspection and copying of the disputed records with the exception of the names and personal identifiers of the complainant and witnesses per KRS 61.878(1)(a) as construed in 99-ORD-39 and 02-ORD-231 (copies enclosed).
Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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