It appears that Kentucky’s flagship university has a thin hull.
The University of Kentucky’s spokesman took umbrage at a headline that appeared in the July 8 Lexington Herald-Leader: “UK violates public records law twice in records requests about university senate, AG says.”
The headline, the university’s spokesman groused, failed to note that the attorney general partially affirmed the university’s denial of public access to records relating to the reconfiguration of its governance structure and the elimination of the university senate.
Better, I suppose, if the Herald-Leader headline read: “UK violates public records law twice in records requests about university senate, AG says, but successfully argues, when given a second chance on appeal, that most public records are none of the public’s business.”
“Interesting that the headline and post leave out the multiple paragraphs of the opinion that affirm @universityofky’s position regarding the preliminary nature of documents and attorney-client privilege,” the spokesman protested.
Interesting indeed.
The university apparently wears as a badge of honor the attorney general’s affirmation of administrative secrecy surrounding its departure from established governance structure and the process associated with dismantling that structure. This, while it touts its commitment to transparency, conveniently ignoring that if transparency and promoting trust is its actual goal, the university is free to waive applicable exceptions and release “protected” records.
But woe unto the newspaper that questions the university’s commitment to transparency or that dares to shine a light on how little progress the university has made since the Kentucky Supreme Court gave it a proper drubbing in 2021’s University of Kentucky v. Kernel Press Inc.
Just how little progress the University of Kentucky has made can be measured in the open records decisions to which the university spokesman proudly alludes.
In each open records appeal – the first filed by the Herald-Leader and the second filed by University of Kentucky Professor Emeritus Davy Jones – the university initially failed to meet its “burden of proof in sustaining the [denial]” of the records requests. Reviewing the university’s actions in two appeals, the attorney general exercised his discretion under KRS 61.880(2)(c) to “request additional documentation from the agency for substantiation.”
In other words, the university failed to make an adequate argument in its original denials of the Herald-Leader’s and Jones’s open records requests. The attorney general thereafter gave the university a second chance to “substantiate” its denials.
In past open records appeals, the university often refused to cooperate with the attorney general by substantiating its arguments. This included the Kernel’s 2016 open records appeal to the attorney general that culminated in the 2021 Supreme Court opinion, University of Kentucky v Kernel Press, Inc.
But having once again issued a “boilerplate, multiple-grounds exception[s] ... for every single document” responsive to the open records requests, the university seized the opportunity to substantiate its denial here, belatedly acknowledging – as the Supreme Court admonished it in 2021 --”this is not how the ORA process works.”
The university compounded the error by treating the records responsive to the Herald-Leader’s and Jones’s requests “as if [they] were one giant record, unable to be separated or compartmentalized.” The university ignored the Supreme Court’s admonition that “grouping all the documents together as one record to avoid production is patently unacceptable under the ORA. For each document the University claims can be properly withheld from production pursuant to the ORA, the University had the burden to prove that the document fits within an exception by identifying the specific ORA exception and explaining how it applies. The boilerplate paragraph — this but if not this then that — used for every withheld document was wholly unacceptable.”
Were it not for the Herald-Leader’s and Professor Jones’s open records requests, their appeals to the attorney general, the attorney general’s request for substantiation, and the attorney general’s rejection of the university’s “wholly unacceptable” original denials, the public would not know, for example, that late last year UK agreed to pay Deloitte Consulting more than $1.35 million for Deloitte’s services and what UK expected to receive in return.
To paraphrase the Franklin Circuit Court’s estimable Judge Phillip Shepherd: the public paid $1.3 million for Deloitte’s consulting services. The public has a right to decide if it got what it paid for.
Nor, for that matter, would the public know about the university’s curious handling of allegations of misconduct leveled against swim coach Lars Jorgensen – a series of warnings, red flags, and “measured” responses that would have remained shrouded in secrecy were it not for recent Lexington Herald-Leader reporting based on records obtained through the open records law.
University officials may not have learned much since the Supreme Court’s scathing open records opinion in 2021, but the public has learned that secrecy does not ensure smooth sailing at Kentucky’s flagship university.
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