Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
Matthew Smith, Kentucky Kernel , by letter dated October 18, 2016, made an open records request to Western Kentucky University ("WKU" or "University") "to obtain all investigative records for all Title IX investigations into sexual misconduct allegations levied against university employees in the past five years." Andrea P. Anderson, Assistant General Counsel, WKU, denied Mr. Smith's request by letter dated October 28, 2016, explaining:
In reviewing the information you requested and using your definition of sexual misconduct from 2013 (the first year WKU began investigating sex and gender based discrimination complaints under Title IX) to the present, WKU conducted 20 investigation [ sic ] with WKU employees as the responding party. Nine of those investigations were of WKU faculty and eleven investigations were of WKU staff. Of the twenty total investigation [ sic ] conducted, six of the investigations resulted in a finding of a WKU policy violation. All six employees of those employees resigned from their respective positions prior to any final action by the University.
WKU cited KRS 61.878(1)(i) and (j) as exceptions 1 to the Open Records Act which allow a public agency to withhold certain records. In citing these exceptions, WKU explained:
The information you requested falls within the two above referenced exceptions to disclosure under the Kentucky Open Records Act. The University is denying your request for the electronic mail records on the basis that these are exempt under KRS 61.878(j) in that the records do not pertain to any final agency action, nor were they adopted as part of a final agency action.
Nicole Ares, College Heights Herald , by letter dated November 1, 2016, made an Open Records request to WKU that was virtually identical to Mr. Smith's request. Ms. Ares requested access "to all investigative records for all Title IX investigations into sexual misconduct allegations including: sexual assault, sexual harassment, sexual exploitation and/or stalking against Western Kentucky University employees in the last five years." By letter dated November 2, 2016, Ms. Anderson denied the request by Ms. Ares using the identical exceptions and explanation as she used in responding to Mr. Smith's request. As with Mr. Smith's Open Records request, the University provided no records in response to Ms. Ares' request.
Mr. Smith appealed WKU's denial to the Office of the Attorney General by letter dated November 1, 2016, and Ms. Ares appealed WKU's denial by letter dated November 21, 2016. Ms. Anderson, on behalf of WKU, replied to Mr. Smith's appeal on November 21, 2016, and replied to Ms. Ares' appeal on November 30, 2016. The responses by WKU were identical in substance. In those responses, WKU broadly 2 explained the types of records that were being withheld.
After briefly describing the types of files withheld, WKU again cited KRS 61.878(1)(i) and (j) as exceptions allowing the investigative files to be withheld. The University maintained that, in the six cases where a WKU employee resigned or retired, "[t]he investigative materials requested by the Kernel did not result in adoption of these preliminary documents as the basis for final action at WKU." WKU further maintained that the resignation/retirement of those employees did not result in the adoption of the preliminary records as the basis for final action at WKU, and therefore those records did not lose their preliminary status and therefore need not be disclosed.
The University also claimed that production of the requested records would violate the personal privacy and federal law exemptions to the Open Records Act in KRS 61.878(l)(a) 3 and (k). 4 WKU also stated: "The issue of whether Title IX investigative records are exempt from disclosure under the Kentucky Open Records Act is currently being litigated in Fayette Circuit Court and is a matter of first impression. WKU respectfully requests that this appeal be held in abeyance pending the outcome of this litigation." 5 6
Unable to resolve the issues on appeal based on WKU's original denials and responses to the appeals, on November 29, 2016, this office requested additional documentation and copies of the records involved in Mr. Smith's request 7 from WKU pursuant to the authority granted this office by KRS 61.880(2)(c). In order for this office to meet the statutory deadline imposed by KRS 61.880(2)(b) for issuance of its decision on the appeal, the documentation was to be provided no later than December 21, 2016. WKU responded on December 21, 2016, but did not provide the requested records for our in camera review. WKU claimed that "federal law prohibits production of the requested records for an in camera inspection...In addition to FERPA, WKU asserts that Title IX prohibits disclosure of all investigative files." 8
In its request for the records at issue to be provided for in camera review, this office allowed: "If the University asserts FERPA protection for the identity of students, we will accept redacted copies of the records withheld but only to protect the names and personal identifiers of students." WKU's response to that allowance was:
Moreover, merely redacting student names and personal identifiers of students would not be sufficient to protect the identity of student reporting parties or witnesses who should be afforded privacy under both federal and state law. Sexual misconduct investigations contain detailed information about the involved parties and the respective witnesses such as how and where the reporting and responding parties met, prior course of dealing between the parties, if any, details about a particular course of instruction, employment position, field of study and/or department, and specifics regarding the location(s) of the alleged act(s) of discrimination which could easily lead to the identity of those sought to be protected. For the above stated reasons, WKU respectfully requests that you affirm WKU's response of withholding the requested records.
When an agency's denial of an Open Records request is appealed to the Office of the Attorney General, this office is statutorily tasked by KRS 61.880(2)(a) to "issue . . . a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." KRS 61.880(2)(c) 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.) 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.
"The Kentucky Open Records Act provides for an ' adjudicatory process ' where an individual who receives an unsatisfactory response to an open records request may appeal to the Attorney General. At the conclusion of the process, the Attorney General issues an opinion, which if not appealed to the circuit court, has the 'force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.'"
Taylor v. Maxson, 483 S.W.3d 852, 857 (Ky. Ct. App. 2016), citing KRS 61.880(5)(b). As the Office of the Attorney General is charged with issuing decisions that have the full force and effect of law (unless appealed), it must have access, as needed, to the records at issue in order to make a fully informed decision.
The Attorney General's decision of whether or not to request additional documentation from the agency for substantiation, or a copy of the records involved, is discretionary and based on the facts specific to each appeal.
Accordingly, we find that WKU failed to meet its burden of proof in denying the requests of Mr. Smith and Ms. Ares and must make immediate provision for them to inspect and copy 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).
The parties herein 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.878(1) (i) and (j) state:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
2 WKU disclosed that during the relevant time period, "it conducted 20 investigations with WKU employees as the responding party. Those 20 files contain notes from meetings/ interviews with the reporting and responding parties and witnesses, witness lists, calendar entries, and email communications between university employees, predominately between the Title IX Coordinator or Investigator and his/her staff as to the strategy to utilize in conducting the investigation, requests for legal advice involving WKU's General Counsel and the exchange of opinions, observations, and/or recommendations for conducting the investigation. In addition, some files contain memorandum, including draft versions of the memorandum, of opinions as to whether a WKU employee violated internal polices; however, of the six investigations that resulted in a finding of a WKU policy violation, all six employees resigned or retired before any action was taken by WKU. Likewise, the remaining 14 investigative files did not result in any action or inaction on behalf of WKU; the matter concluded with the opinion that there was no internal policy violation, an opinion held by a particular individual, not the University's determination on the issue."
3 KRS 61.878(1)(a) provides an exception to the Open Records Act for: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
4 KRS 61.878(1)(k) provides an exception for: "All public records or information the disclosure of which is prohibited by federal law or regulation."
5 As a matter of clarification, we note that the issue being litigated in Fayette Circuit Court is not whether Title IX investigative records are categorically exempt under the Open Records Act, as WKU asserts. The issue is whether The Family Educational Rights and Privacy Act, 20 U.S.C. 1232g (or "FERPA"), prohibits disclosure of specific investigative records either collected for or generated as a result of a Title IX sexual assault investigation. The issue between the University and the Kentucky Kernel , as it relates to FERPA, is determining whether the specific investigative records are, in fact, FERPA-protected "education records," and therefore exempt under the Act, and/or whether such "education records," if any, can be sufficiently redacted as to allow disclosure to the Kernel .
6 KRS 61.880(2)(b) does not permit this office to hold a decision in abeyance. An extension of the 20 business day deadline for issuing a decision can only be extended for an additional 30 business days for three reasons: 1. The need to obtain additional documentation from the agency or a copy of the records involved; 2. The need to conduct extensive research on issues of first impression; or 3. An unmanageable increase in the number of appeals received by the Attorney General.
7 By letter of December 7, 2016, this office advised WKU that it would not request a separate copy of the records based on Ms. Ares' request as her request was virtually identical to Mr. Smith's Open Records request. Review of the records provided in Mr. Smith's appeal would suffice for the review necessary to advise this office regarding Ms. Ares's request.
8 WKU cited, for support of this claim, "Questions & Answers on Title IX and Sexual Violence," April 29, 2014, Office of Civil Rights, U.S. Department of Education.