Okay, Mr. Gerth, we’ll see your tone-deaf lawmakers and raise you public universities — those bastions of academic freedom that delay and obfuscate, pander to selfish and self-serving political interests, conceal uncomfortable truths, and silence, by whatever means necessary, their critics.
Making their second appearance, here are the Kentucky Open Government Coalition’s Giblet Awards — State University Edition.
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We begin with the most recent and inexplicable university "solution" to serious classroom safety concerns raised by an associate professor who sought to back up her claims using the open records law.
On November 23, the Richmond Register published a little-noticed article about Dr. Lisa Gannoe, an associate professor at Eastern Kentucky University who “claims university officials fostered a hostile work environment and retaliated against her ... after she complained about a lack of action regarding classroom safety complaints.”
The Register gave EKU officials an opportunity to respond to Gannoe’s allegations. The university did so by offering general assurances that it “takes all reports of possible workplace concerns seriously, including reports of retaliation, and makes every effort to respond to such reports as quickly as possible.” It referred the Register to a university policy.
The Richmond Register describes Gannoe’s unsuccessful pursuit — through all legally available means — of a resolution to a classroom challenge posed by a volatile and disruptive student.
Among the legally available mechanisms she employed, Gannoe submitted an open records request to EKU for evaluative comment sheets prepared by students in the class. She appealed the university’s partial denial of her request to the Kentucky Attorney General – who added insult to injury by affirming EKU’s partial denial.
Gannoe was thereafter “rewarded” for her efforts by EKU officials who accused her of violating the Family Educational Rights and Privacy Act by appealing its open records denial to the Attorney General.
The Attorney General declined to review the university's FERPA protection claim – neither confirming nor refuting it.
“The disclosure of FERPA-protected information in a public document alone was sufficient to warrant termination,” Gannoe was nevertheless admonished.
Gannoe's status — and her questions about EKU’s handling of her classroom safety concerns — remain unresolved.
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On the “lighter” side, WKUHerald.com reported on November 7 that Western Kentucky University had invoked the exception to the open records law for proprietary records/trade secrets --confidentially disclosed to a public agency and generally recognized as confidential or proprietary -- to partially deny the newspaper's request for the $130,000 contract with NBA Hall-of-Famer Shaquille O’Neal for DJ services at an October 21 pregame concert.
What highly sensitive contract provision did WKU withhold?
“The hospitality section of O’Neal’s personal appearance contract.”
University officials claimed such information — whatever it encompassed in general (and we are left to wonder) — is “considered proprietary and is redacted pursuant to KRS 61.878(1)(c) [sic].”
Let’s be clear. We are not talking about a request for records identifying, let’s say, the “11 herbs and spices" used in preparing the fried chicken but the presence of fried chicken on the backstage buffet.
We called “fowl.” So did the newspaper. It has appealed WKU's partial denial of its request to the Kentucky Attorney General.
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In October, the Kentucky Attorney General determined that the University of Kentucky — fresh on the heels of a strongly-worded Kentucky Supreme Court opinion admonishing the university for its “wholly inadequate” denial of an open records request — violated the open records law by ignoring part of an open records request for “e-mails and text messages exchanged by the head coach or associate head coach of the university’s football program and two individuals identified by name and believed to be Joe and Kelly Craft” and tweets/retweets on official accounts “that identified a named person believed to be Kelly Craft.” The attorney general also determined that UK subverted the intent of the open records law by conditioning it’s response on a demand that the requester narrow her request.
Ignoring the “stinging rebuke by the Kentucky Supreme Court in a case where the university tried to use educational privacy statutes to impede the public from understanding severe allegations of misconduct against university employees,” Kentucky’s flagship university proved, once again, that it “is a slow learner.”
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The Coalition’s Giblet Awards would not be complete without a nod to the university foundation that continues to defy 30-year-old precedent — and rack up attorneys fees — by insisting that it is not a public agency for open records purposes.
In September, 2022, the Kentucky State University Foundation returned to the Franklin Circuit Court to respond to the State Journal’s motion “to clarify the status of the requested records and to request that the Court compel the Foundation to produce the requested records.”
Some 15 months before, the State Journal requested “copies of records related to payments made to a specific individual for a two-year period, as well as ‘payments made for the purposes of parties celebrating [the specific individual’s] birthday[,]’” as well as “‘records or documentation reflecting payments of more than $1,500 made to any entity or individual[.]’”
That “specific individual” was then-KSU president Christopher Brown.
The KSU Foundation ignored a 1992 Kentucky Supreme Court opinion declaring that “[a]n interpretation of K.R.S. 61.870(1) [defining ‘public agency’], which does not include the [Kentucky State University] 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” and later an attorney general’s records decision resolving the current open records dispute in favor of The State Journal in 2021.
Franklin Circuit Court Judge Phillip Shepherd ultimately rejected the Foundation’s arguments in an opinion issued in August, 2022, declaring that “as an arm of KSU [that exists solely] for the purpose of fundraising and support of KSU’s students, faculty, programs and mission, the foundation is accountable to the public through its records.”
“If the principal (KSU) is subject to the Open Records Act,” Judge Shepherd reasoned, “then the agent (KSU Foundation) must also be subject to the Open Records Act.”
The parties await a ruling from the court on any additional disclosure obligations and an award of costs, attorneys fees, and penalties to The State Journal — a newspaper that could ill-afford to absorb the cost of protracted litigation but was nevertheless determined to defend the public’s right to know.
Whether the KSU Foundation will appeal the underlying legal issue — whether it is a public agency for open records purposes — to the Kentucky Court of Appeals is still unclear.
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Rounding out the list of recipients of the 2022 Giblet Awards with the mother of all university open government blunders, Murray State University “shocked the most benumbed conscience” in late October by advancing the claim that the First Amendment — which declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” — authorized denial of an open records request submitted by WPSD news director Perry Boxx.
Boxx requested communications exchanged by Murray State President Robert Jackson, then-Marshall and Calloway County Circuit Court Judge Jamie Jameson, Murray State public radio affiliate WKMS Station Manager Chad Lampe, and other identified individuals, that related to an earlier open records request submitted by WKMS’s news department for courthouse security video showing since-removed Judge Jameson walking through the courthouse in his underwear.
The request was directed at communications in which the judge attempted to use his influence with university officials — including President Jackson — to kill an embarrassing story about the “disrobed” judge and an equally embarrassing story about university officials’ responses to the judge's influence peddling.
“Murray State’s argument is a textual non-starter,” the Coalition wrote, “and, frankly, deeply offensive.”
In November, WPSD appealed the university’s partial denial of Boxx’s request to the Kentucky Attorney General.
On behalf of WPSD, attorneys Michael Abate and Rick Adams, of Louisville’s Kaplan, Johnson, Abate, and Bird, asserted:
“There is simply no basis to claim — and MSU suggests none — that any communication among MSU administrators and employees ‘regarding WKMS’ is somehow protected by the First Amendment. It would be absurd to allow MSU to invoke the First Amendment’s press protections to prevent the public from accessing public records that may reveal MSU’s attempts to infringe on [WKMS former station manager Chad] Lampe’s fundamental First Amendment right to report the news. But that is precisely what MSU asks this office to do. MSU asks this office to disregard the Open Records Act — the public’s primary vehicle for holding its government officials accountable — in favor of secreting away public records that may reveal serious misconduct by MSU officials. Still worse, it does so by wrapping itself in the protections of the First Amendment after the JCC found by clear and convincing evidence that MSU administrators acquiesced to Judge Jameson’s request to contact Chad Lampe for information about his reporting on Judge Jameson using the Open Records Act.”
WPSD maintained, and we agree, “it is difficult to imagine a more cynical attempt to withhold production of public records than MSU’s efforts here.”
The parties await an open records decision from the attorney general in December which will decide a future course of action.
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And that’s a wrap. But we conclude with a question: Why does it matter?
Why does it matter that Kentucky’s universities — whose administrations enjoy monetary and staffing resources far greater than many state and most local agencies — regularly deviate from the open records law with apparent impunity?
Why does it matter that high-ranking officials at these beacons of free thought and expression, when admonished for their misconduct, willfully ignore these admonishments?
It matters because it is inexcusable, often illegal, and as nauseatingly unpalatable as a handful of giblets freshly extracted from an uncooked turkey’s body cavity.