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 Kentucky State University (KSU) "to obtain all investigative records for all Title IX investigations into sexual misconduct allegations levied against university employees in the past five years." Gordon Rowe, General Counsel, KSU, denied Mr. Smith's request explaining:
Your Open Records request is denied on the grounds that it necessarily requires Kentucky State University ("KSU") to disclose private information regarding victims of sexual assault, which would violate the CLERY Act, the Violence Against Women Act, potentially FERPA, and victim's fundamental rights to privacy. "
Mr. Rowe did not cite any of the statutory exceptions provided for by the Kentucky Open Records Act in denying the Open Records request. Mr. Smith filed an appeal of KSU's denial of his request and KSU answered that appeal on November 15, 2016. KSU's response again referred to the Family Educational Rights and Privacy Act (FERPA), the Clery Act, the Violence Against Women Act (VAWA) 1 and KRS 61.878(1)(a). In regards to withholding records pursuant to KRS 61.878(1)(a), the response further stated:
The disclosure of the investigative records in the sexual assault cases contains myriad intimate details of the traumatic events involved in sexual assaults. Particularly on a small campus such as KSU's campus, these intimate details of the lives and trauma of the accusers would be unnecessarily and widely disseminated. It would not be difficult to review these disclosures to determine the personal identity of these victims, which, in many cases, would cause further harm and trauma to the victims of sexual assault
Unable to resolve the issues on appeal based on KSU's original denial and response to the appeal, on November 29, 2016, this office requested additional documentation from KSU 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. After that deadline passed without a response from KSU, this office contacted the office of KSU's General Counsel and a response to the request for additional documentation was received January 6, 2017. In its response, KSU altered course from its previous letters, now stating that:
Kentucky State University does not have any records specifically categorized as "Title IX investigations into sexual misconduct allegations levied against University employees in the past five years," which were specifically requested by Matthew Smith of the Kentucky Kernel (the "Kernel") in the Open Records Request which is the subject of the above-referenced appeal. However, attached hereto are records relating to a final agency action against a former University employee who was accused of sexual misconduct (at that time, the allegations were not investigated under Title IX but under the general University policy against sexual harassment). The name of the student involved has been redacted.
From this response, this office is unable to determine whether KSU is merely denying that it has conducted any Title IX investigations into sexual misconduct allegations levied against University employees in the past five years and therefore has no responsive investigative records, or is denying that it has records specifically categorized as "Title IX investigations into sexual misconduct allegations levied against University employees in the past five years." The latter interpretation would apply an overly strict reading of the requirement of KRS 61.872(2) 2 to describe the records the requester wishes to inspect. 3 In either case, the University's response mentions only one instance 4 relating to an accusation of sexual misconduct by a former University employee, whereas the November 15, 2016, response refers to "accusers, " "sexual assault cases," "victims," and "many cases." That November 15th response also stated that "in some cases, investigations may not be fully completed. In those cases, disclosure of the investigative records would potentially harm ongoing investigation or reveal confidential witnesses prior to final adjudication." This office is left to speculate as to whether there was only one instance of sexual misconduct by a University employee in the past five years, or whether there have been multiple such instances. This lack of clarity would have been unnecessary had the University merely provided the records requested for the OAG's in camera review.
Likewise, the University's claims of privacy regarding the requested records pursuant to FERPA, the Clery Act, and the Violence Against Women Act, could not be resolved without having the requested records to review against those claims.
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 Kentucky State University failed to meet its burden of proof in denying Mr. Smith's request and must make immediate provision for Mr. Smith'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 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 Family Educational Rights and Privacy Act (FERPA), the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), and the Violence Against Women Act of 1994 (VAWA) are federal laws. Federal privacy laws may be incorporated into the Open Records Act through KRS 61.878(1)(k).
2 KRS 61.872(2) states: "Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected . The application shall be hand delivered, mailed, or sent via facsimile to the public agency." (Emphasis added).
3 A request must be specific enough so that a public agency can identify and locate the records in question." OAG 89-8. "A description is sufficiently precise for purposes of records access by mail if it describes the records in definite, specific, and unequivocal terms." 98-ORD-17. Mr. Smith's Open Records request was specific enough for KSU to identify and locate the records in question.
4 KSU provided two letters having to do with final agency action for a single case alleging sexual harassment by a University employee but did not provide any investigative records.