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COMMONWEALTH OF KENTUCKY WARREN CIRCUIT COURT
DIVISION I CIVIL ACTION NO. 17-CI-00233
COMMONWEALTH OF KENTUCKY, INTERVENING PLAINTIFF ex rel. ANDY BESHEAR, ATTORNEY GENERAL v. WESTERN KENTUCKY UNIVERSITY INTERVENING DEFENDANT
INTERVENING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Comes the Intervening Plaintiff, the Commonwealth of Kentucky ex rel. Andy Beshear,
Attorney General (hereinafter “Attorney General”), and moves for summary judgment against
the Intervening Defendant, Western Kentucky University. In support of its motion, the Attorney
General states there is no genuine issue of material fact in this case, and the Attorney General is
entitled to judgment as a matter of law. The Attorney General has submitted a memorandum of
law in support of its Motion for Summary Judgment.
Per the Court’s Order of November 21, 2017, this Motion has been set for a hearing on
April 6, 2018 at 10:00 AM CST.
Respectfully Submitted ANDY BESHEAR ATTORNEY GENERAL /s/ Sam Flynn Sam Flynn Assistant Attorney General S. Travis Mayo Executive Director Office of Civil and Environmental Law
La Tasha Buckner Assistant Deputy Attorney General
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Capitol Building, Suite 118 700 Capital Avenue Frankfort, KY 40601 Telephone No. (502)-696-5300 Facsimile No. (502)-564-8310
Counsel for the Intervening Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing Motion for Summary Judgment via the Court’s electronic filing system on March 1, 2018, and that I also sent a true and accurate copy of the same via electronic mail to the following individuals on March 1, 2018: Thomas W. Miller Elizabeth C. Woodford Miller, Griffin & Marks, P.S.C. 271 W. Short Street, Suite 600 Lexington, Kentucky 40507 [email protected] [email protected] Hon. Thomas N. Kerrick Ena V. Demir Kerrick Bachert, PSC 1025 State Street P.O. Box 9547 Bowling Green, KY 42102-9547 [email protected] [email protected] Michael Abate Kaplan & Partners, LLP 710 West Main Street, 4th Floor Louisville, KY 40202 [email protected] /s/ Sam Flynn Sam Flynn
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COMMONWEALTH OF KENTUCKY WARREN CIRCUIT COURT
DIVISION I CIVIL ACTION NO. 17-CI-00233
COMMONWEALTH OF KENTUCKY, INTERVENING PLAINTIFF ex rel. ANDY BESHEAR, ATTORNEY GENERAL v. WESTERN KENTUCKY UNIVERSITY INTERVENING DEFENDANT
INTERVENING PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Intervening Plaintiff, the Commonwealth of Kentucky, ex rel. Andy Beshear, Attorney
General, submits this Memorandum of Law in support of his Motion for Summary Judgment.
MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
The Attorney General is entitled to judgment as a matter of law pursuant to the plain and
unambiguous language of KRS 61.880(2)(c). KRS 61.880(2)(c) provides the Attorney General
with the authority to request and to conduct a confidential and in camera review of any records a
public agency refuses to provide in response to an open records request. The Family Education
Rights and Privacy Act (“FERPA”) does not prohibit a public agency from providing such
records for review as the review is not a public disclosure – but an adjudicative one. Reading
KRS 61.880(2)(c) any other way would violate the directive of the Kentucky Supreme Court that
courts “interpret statutes, as written, without adding any language to that statute, even in open
records cases.” Commonwealth v. Chestnut, 250 S.W.3d at 661. Western Kentucky violated the
Kentucky Open Records Act by failing to provide the records involved in the underlying open
records appeal to the Attorney General for substantiating, in camera review. Because Kentucky
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law is clear and no genuine issue of material fact remains, this Court should grant the Attorney
General’s Motion for Summary Judgment.
BACKGROUND
I. The Attorney General Adjudicates Open Records Appeals.
In 1976, the Kentucky General Assembly enacted the Open Records Act, KRS 61.870, et
seq., establishing the public’s right of access to public records in the Commonwealth. To ensure
the utmost transparency, the General Assembly also created a statutory adjudicatory process
whereby an aggrieved citizen might challenge a public agency’s reasons for refusing to publicly
disclose records. See KRS 61.880. In open records appeals, the law requires the Attorney
General to adjudicate whether the agency met its burden of proving that the records withheld are
truly exempt from public disclosure under the Act. See KRS 61.880(5); see also, Taylor v.
Maxson, 483 S.W.3d, 852, 857 (Ky. App. 2016) (Attorney General’s review is a “well defined”
statutory adjudication entitled to judicial immunity).
Consistent with that duty, the General Assembly provided the Attorney General the
authority to conduct a confidential, in camera, review of the records involved. See KRS
61.880(2)(c). This review “…serves to save a reviewing Court the time and costs associated with
adjudication and in camera review….” Kentucky State Univ. v. The Kernel Press, d/b/a Kentucky
Kernel, No. 17-CI-00199, Order at 10 (Oct. 13, 2017). Kentucky courts have held that an
agency’s refusal to comply with the Attorney General’s in camera review, “… subverts the
General Assembly’s intent behind providing review by the Attorney General under KRS
61.880(5).” Cabinet for Health and Fam. Servs. v. Todd Co. Standard, 488 S.W. 3d 1, 8 (Ky.
App. 2015); see also, Kentucky State Univ. v. The Kernel Press, d/b/a Kentucky Kernel, No. 17-
CI-00199, Order at 7-11 (Oct. 13, 2017).
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A. The Kentucky Open Records Act Favors Disclosure, Fosters Transparency, and Secures the Public Trust.
When it enacted the Kentucky Open Records Act, the General Assembly declared that the
free and open examination of public records is in the public interest. KRS 61.871. Exceptions to
free and open examination of public records “shall be strictly construed, even though such
examination may cause inconvenience or embarrassment to public officials or others.” Id.
The Kentucky Supreme Court has since recognized that “[t]he [Open Records] Act was
intended to make transparent the operations of the State’s agencies.” Lawson v. Office of the
Attorney General, 415 S.W.3d 59, 70 (Ky. 2013). The Supreme Court also noted “[t]he Act
undoubtedly militates in favor of disclosure, and the public agency that is subject of an open
records request bears the burden of proving the documents sought fit within an exception to
disclosure.” See Hahn v. Univ. of Louisville, 80 S.W.3d 771, 774 (Ky. 2001) (internal citations
omitted). The agency bears the burden of proving its alleged exceptions, and those exceptions are
strictly construed even when the agency alleges the records are attorney-client privileged or
protected by federal privacy law – including FERPA. Id.; Hardin Co. Schs. v. Foster, 40 S.W.3d
865 (Ky. 2001).
Public entities must permit inspection of public records as required or risk meaningful
punishment for noncompliance. “Rigid adherence to this stark principle is the lifeblood of a law
which rightly favors disclosure, fosters transparency, and secures the public trust.” Cabinet for
Health and Fam. Serv. v. The Courier Journal, Inc., 493S.W.3d 375, 389 (Ky. 2016).
B. The Attorney General Adjudicates Open Records Appeals So the Public May Secure Documents Without Incurring the Time and Costs of Going to Court.
Because of the strong public policy favoring transparency, a public agency denying an
open records request must provide particular and detailed information to the public requester.
KRS 61.880(1) requires the agency provide this information in clear, direct terms: whether
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responsive records exist, if so which records the agency is withholding, the specific exemption
authorizing such withholding, and a brief explanation of how the exemption applies to each
record. KRS 61.880(1); see e.g., 15-ORD-151.
A person whose open records request is denied may appeal that denial to the Attorney
General. KRS 61.880(2)(a).1 The burden of proof rests with the agency. KRS 61.880(2)(c). The
Act provides “…an ‘adjudicatory process’ where an individual who receives an unsatisfactory
response to an open records request may appeal to the Attorney General.” See Taylor, 483
S.W.3d at 857 (Ky. App. 2016) (holding that statements made during open records appeals are
protected by absolute judicial immunity because the Attorney General’s review is a “well
defined” statutory adjudication process) (citing KRS 61.880(5)(b)). Specifically, KRS
61.880(2)(a) requires:
“… The Attorney General shall review the request and denial and issue … a written decision stating whether the agency violated provisions of KRS 61.860 to 61.884.”2
The General Assembly enacted the law to provide the Attorney General with all
necessary powers to render a proper decision so that private citizens and newspapers would not
have to hire a lawyer and resort to the courts in order to secure a public document. In fact,
Representative Joseph Clarke, Chairman of the Subcommittee on Open Records that led to the
passage of the Act, remarked that as the law then existed, it is very difficult, if not impossible,
for individuals and small newspapers to get access to a record through courts because of the time
and cost involved.3 Recently, Judge Wingate echoed this sentiment, stating “[t]he Attorney
1 Appeals may also be made to a Circuit Court, which then serves as the adjudicator of the appeal. KRS 61.882(1)-(2). 2 The Attorney General’s authority to review appeals under KRS 61.880(2) includes review of records exemptions under KRS 61.878. 3 Interim Committee on State Gov’t, Subcommittee on Open Records, Minutes of First Meeting of the 1974-76 Biennium, p. 2 (February 25, 1975)
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General’s role in the [open records] appeal process was intended to save the Court the time and
costs associated with adjudication and in camera review of substantiating documents related to
Open Records requests.” Kentucky State Univ. v. The Kernel Press, d/b/a Kentucky Kernel, No.
17-CI-00199, Order at 10 (Oct. 13, 2017). If public agencies are permitted to undermine the
Attorney General’s adjudication by refusing to comply with his in camera review, then private
citizens will be forced to do exactly what the Act was intended to avoid – hire a lawyer and go to
court.
C. The General Assembly Provided the Attorney General the Power to Confidentially Review Documents.
The appeals process under the Act also favors transparency. The public agency – not the
requester – has the burden of proof to demonstrate that the records it alleges are exempt from
disclosure to the public are, in fact, exempt under the Act, KRS 61.880(2)(c), and the
requirement that the agency’s claimed exemptions be strictly construed also continues. KRS
61.871; Hahn, 80 S.W.3d at 774. In short, under both statute and Kentucky Supreme Court
precedent, the Attorney General must carefully evaluate the agency’s claimed exceptions.
To determine if the public agency has met its burden, and to ensure an agency does not
block access to public records through falsely claimed exceptions, the General Assembly
provided the Attorney General with the authority to review the records, in camera, to
substantiate the agency’s claimed exemptions and determine whether the agency has met its
burden of proof. KRS 61.880(2)(c). As KRS 61.880(2)(c) provides:
“… 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).
The Attorney General may review the records involved to verify the exceptions an
agency asserted. Regulation further confirms the Attorney General’s authority to do so. KAR
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1:030(3). The Franklin Circuit Court recently echoed this sentiment, holding that the Attorney
General has the express authority to review records in order to substantiate an agency’s alleged
exceptions under the Act, including those claimed exceptions based on FERPA. See Kentucky
State Univ. v. The Kernel Press, d/b/a Kentucky Kernel, No. 17-CI-00199, Order at 7-11 (Oct.
13, 2017) (citing KRS 61.880(2)). The Kentucky Court of Appeals has held that if a public
agency refuses to provide the requested information and thereby “… intentionally frustrate[es]
the Attorney General’s review …[,] such a result would subvert the General Assembly’s intent
behind providing review by the Attorney General under KRS 61.880(5). See Cabinet for Health
and Fam. Servs. v. Todd Co. Standard, 488 S.W. 3d 1, 8 (Ky. App. 2015).
The Attorney General cannot disclose any documents provided for in camera review at
any time, and must destroy the copies of the records when he renders the decision. As 40 KAR
1:030(3) provides:
“KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which the complaint is made. If the documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered.”
Thus, the records the Attorney General requests for in camera review remain completely
confidential and must be destroyed. No public disclosure can occur.
II. During its Open Records Appeal, The University Refused To Provide Any Of The Records Involved To The Attorney General For Review.
A. The University Denied The Kernel’s and College Heights Herald’s Open
Records Requests.
On October 18, 2016, The Kernel made an open records request for “… all investigative
records for all Title IX investigations into sexual misconduct levied against University
employees in the past five (5) years … .” (See The Kernel’s Open Records Request (Oct. 18,
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2016)) (attached as Exhibit A). The request specifically sought records directly related to
allegations of sexual misconduct by “university employees” – not students.
On October 28, 2016, the University acknowledged that it possessed at least twenty (20)
files responsive to The Kernel’s request, stating:
… In reviewing the information you [The Kernel] 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[s] 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 investigations 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… [sic].
(See University Response to Open Records Request, Oct. 28, 2016)) (attached as Exhibit B.)
However, the University denied The Kernel’s request, claiming that all responsive records were
“preliminary” and therefore exempt from disclosure under KRS 61.878(1)(i) and (j) to the Open
Records Act. (Id.) The University did not claim any other exemption applied to the records. (Id.)
On November 1, 2016, Nicole Ares, a reporter with The College Heights Herald, made a
virtually identical open records request to the University for 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.” (See The College Heights Herald’s Open Records Request, Nov. 1, 2016))
(attached as Exhibit C). The University denied The Herald’s request, claiming identical
exemptions and explanation used in responding to The Kernel’s request. (University Denial Letter
to The College Heights Herald, Nov. 1, 2016)) (attached as Exhibit D).
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B. The Kernel and The College Heights Herald Appealed the University’s Denial.
On November 1, 2016, The Kernel filed an open records appeal with the Attorney
General. The University responded to the The Kernel’s appeal by letter dated November 21,
2016. (See University Response to The Kernel Appeal, Nov. 21, 2016) (attached as Exhibit E).
On November 21, 2016, The Herald filed an open records appeal with the Attorney General. By
letter of November 30, 2016, the University responded to The Herald’s appeal, restating its
response to The Kernel’s appeal nearly verbatim. (See University Response to The Herald
Appeal, Nov. 30, 2016)) (attached as Exhibit F). The University’s virtually identical responses
argued, again, that the records involved were preliminary, stating:
The information contained in the requested sexual misconduct investigative files is the exact information exempted from disclosure under the Open Records Act. City of Louisville v. Courier-Journal and Louisville Times, 637 S.W.2d 658 (1982). The purpose of the exemption is to “protect the integrity of the agency’s decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency.” … Consistent with this long-standing rationale, preliminary drafts, notes, correspondence and memorandum do not lose their exempt status simply because the investigation is complete. There must be overt action in adopting these preliminary documents as the basis for final agency action in order for the purpose of KRS 61.878(1)(i) and (j) to no longer be served. The investigative materials requested … did not result in adoption of these preliminary documents as the basis for final action at WKU.
(Exhibits E, F.)
In addition, the University then argued that all the records involved were also
exempt from public disclosure under the personal privacy and federal law exemptions
found at KRS 61.878(1)(a) and (k). Specifically, the University stated:
In addition to the exemptions found in KRS 61.878(1)(i) and (j), WKU maintains that production of the requested records violate the personal privacy and federal law exemptions to the Open Records Act in KRS 61.878(1)(a) and (k). Specifically, in complying with Title IX of the Education Amendments of 1972, WKU is required to respond to complaints of sex and/or gender based
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discrimination and to do so with the utmost discretion and confidentiality that can be afforded the investigative process. Disclosure of investigative materials would significantly stifle complainants from reporting sex and/or gender based discrimination and witness cooperation in the investigative process. On addition, FERPA and its implementing regulations protects student records contained within many of the files requested … from disclosure. Finally, disclosure of the requested records would constitute a clearly unwarranted invasion of personal privacy for all involved parties, an exemption within the Open Records Act at KRS 61.878(1)(a). Moreover, merely redacting the names of the complainant does not shield the complainant and supporting witnesses from disclosure
(Exhibits E, F.)
C. The Attorney General Requested Copies of the Records Involved in Order to Substantiate the University’s Claimed Exemptions.
Unable to resolve the issues on appeal based on the University’s original denial letters
and Responses,4 by letter dated November 29, 2016 the Attorney General asked for copies of the
requested records, as well as additional information in an attempt to substantiate the University’s
claimed exemptions, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030(3).
In an abundance of caution, and with profound respect for personal privacy interests, the
Attorney General further offered to accept the responsive records with the names and personal
identifiers of the student complainant(s) and student witness(es) redacted. (See Attorney
General’s KRS 61.880(2)(c) Letter Requesting Additional Information and Records, Nov. 29,
2016)) (attached as Exhibit G) (emphasis added). Under KRS 61.878(4), an agency shall separate
the excepted material from a public record and make the nonexempt material in the record
available for examination. In his request, the Attorney General also sought additional
information, including the University’s policies and procedures for handling sexual misconduct
4 The adjudication of the Open Records appeal involved at least the twenty (20) files the University claimed it possessed. Even assuming these twenty (20) files were the only files responsive to the newspapers’ requests, each of these files ostensibly contained numerous and likely hundreds of individual records.
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allegations, as well as “the types of records generated, who creates those records, to whom the
records are sent, and who receives the records.” (Id.) The Attorney General requested the
University provide the records involved and additional information by December 21, 2016.
D. The University Refused to Provide the Records Involved to Substantiate Its Claimed Exemptions, Resulting in a Violation of the Act Based on the Burden of Proof.
On December 21, 2016, the University responded to the Attorney General’s request for
additional documentation and copies of the records involved, but refused to provide any of the
requested, responsive records. (See University Response to Request for Additional
Documentation, Dec. 21, 2016)) (attached as Exhibit H). Specifically, the University stated that
“federal law prohibits production of the request records for an in camera inspection … . In
addition to FERPA, WKU asserts that Title IX prohibits disclosure of all investigative files.”
(Id.)
On January 26, 2017, the Attorney General issued the Open Records Decision, In re:
Matthew Smith and Nicole Ares/Western Kentucky University, 17-ORD-014 (attached as Exhibit
I). In his decision, the Attorney General noted that through KRS 61.880(2)(c), the Kentucky
General Assembly assigned the burden of proof in an open records appeal to the agency resisting
disclosure, and also provided the Attorney General the authority to request additional
documentation, including the records at issue, from the agency for substantiation. 17-ORD-014.
The Attorney General also stated that the decision of whether or not to request additional
documentation, or a copy of the records involved, from the agency is discretionary and based on
the facts specific to each appeal. Id. The Attorney General found that the University failed to
meet its burden of proof in denying The Kernel’s and The Herald’s open records requests. Id.
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III. The University Appealed to the Circuit Court. On February 24, 2017, the University filed its Complaint and Notice of Appeal in the
above-styled action, appealing 17-ORD-014. The Attorney General sought intervention on
March 23, 2017. This Court granted the Attorney General’s Motion to Intervene on April 4,
2017. On April 20, 2017, the University filed its Answer to the Intervening Complaint, wherein
it argues the Attorney General cannot conduct an in camera review of the records involved –
which it failed to identify with any specificity – or, indeed, any record the University claims is a
“student record.” (Univ. Answer to Int. Compl. at 1-2, ¶ 1.) The University contends its mere
assertion somehow moots the Attorney General’s right to review under KRS 61.880(2)(c). The
University is wrong.
IV. The University Admits That Some of the Records Are Not “Education Records” The University has insisted that all the records involved in the underlying appeal were
FERPA “education records,” resulting from Title IX investigations. (Univ. Compl. at 5, ¶ 14.)
The University then, incorrectly, asserted that FERPA prohibited the Attorney General from
conducting a substantiating in camera review. In short, FERPA was the University’s only, if
incorrect, basis for refusing to comply with the Act.
However, during discovery the University produced a privilege log, conceding none of
the records in cases M, N, R, and T, are FERPA “education records.” (Univ. Resp. to CHH
Interrogatory No. 2.) (attached as Exhibit J) Moreover, on February 7, 2017, Counsel for the
University further confirmed this before the Court during a telephonic motion hearing on the
record. Instead, the University now claims that the records are merely exempt from public
disclosure as “preliminary.” Even if FERPA prohibited the Attorney General’s review – which it
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does not – the University’s refusal to provide the records in cases M, N, R, and T for in camera
review violated the Act.
LEGAL STANDARD
Under CR 56.01, “[a] party seeking to recover upon a claim … or to obtain a declaratory
judgment may, at any time after the expiration of 20 days from the commencement of the action
… move with or without supporting affidavits for a summary judgment in his favor upon all or
any part thereof.” Pursuant to CR 56.03, summary judgment “shall be rendered forthwith if the
pleadings ... show that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” See Steelvest, Inc. v. Scansteel Service Cntr., Inc., 807
S.W.2d 476 (Ky. 1991). Under KRS 418.040, the Court may make a binding declaration of
rights, and under CR 65.01, the Court may issue a permanent injunction in a final judgment.
ARGUMENT The Attorney General is entitled to judgment as a matter of law. The University’s refusal
to provide any responsive records to the Attorney General violated the Open Records Act. The
University willfully violated the Act by asserting some of the records involved that it refused to
provide to the Attorney General – four (4) files – were protected by FERPA, but now admitting
they do not fall under FERPA and instead are preliminary.
The General Assembly provided the Attorney General – like the Circuit Courts – with the
unambiguous authority to review records involved in an opens records appeals. Refusal to
provide those records violates the Act, subverts its intent, and undermines – if not eviscerates –
the Attorney General’s ability to properly adjudicate appeals; just as it would destroy the Circuit
Court’s ability to adjudicate appeals brought under KRS 61.882. Notably, the University has
previously expressly recognized the Attorney General’s authority under KRS 61.880(2)(c) to
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conduct a confidential in camera review of records related to allegations of sexual misconduct by
a University employee. See 99-ORD-039 at 12; 15-ORD-189.5
For the first time, the University claims in this matter that when a public agency suggests
that records fall under FERPA, then an agency may refuse the Attorney General’s confidential in
camera review, and not provide any documentation to substantiate its denial. Alternatively,
without any citation, the University claims that Title IX somehow precludes the Attorney
General’s confidential review. The University’s position creates a clear path for a bad actor to
avoid the Open Records Act by (1) refusing to identify any records, (2) claiming FERPA, Title
IX, or another exemption applies to all records, and then (3) refusing the Attorney General’s
review authorized by law. In practice, the public or press would always be required to hire a
lawyer and file an appeal in Circuit Court, which is exactly what the Act was created to avoid.
No genuine issue of material fact exists. The University admits that it did not produce any
responsive records to the Attorney General – including the four (4) files the University now
admits are not protected by FERPA. The University failed to identify the universe of records or
make any effort to identify what claimed exemption applied to what particular record. As a
result, the University violated the Act.
I. The Plain Language of KRS 61.880(2)(c) Provides The Attorney General With Unambiguous Authority To Request And Review Records.
The Kentucky Supreme Court has recognized that courts must interpret statutes,
including the Open Records Act, “… as written, without adding any language to the statute …”
Com. v. Chestnut, 250 S.W. 3d 655, 661 (Ky. 2008). All Kentucky statutes must be liberally
5 During an open records appeal, the Attorney General requested a confidential in camera review of records the University claimed were exempt “preliminary” records under KRS 61.878(1)(j), consisting of personnel records and memos between University employees. See 15-ORD-189. The University “promptly complied” with the Attorney General’s request for in camera review. Id.
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construed with a view to promote their objects and carry out the intent of the legislature. KRS
446.080(1). All words and phrases must be construed according to the common and approved
usage of language. KRS 446.080(4).
Under KY. CONST. § 91, the Attorney General is a constitutional officer. “The source of
authority of the Attorney General is the people who establish the government, and his primary
obligation is to the people.” Commonwealth ex rel. Beshear v. Bevin, 498 S.W. 3d 355, 363 (Ky.
2016) (citations omitted). Further, KRS 15.020 mandates that the Attorney General, as the chief
law officer of the Commonwealth, “shall exercise all common law duties and authority
pertaining to the office of the Attorney General under the common law, except when modified by
statutory enactment.”
Access to open records is a statutory right and has a statutory system of adjudication
under either KRS 61.880 or KRS 61.882. When a public agency denies a request, the aggrieved
requester may appeal to the Attorney General under KRS 61.880, or to the Circuit Court under
KRS 61.882. Appeals to the Attorney General are an “adjudicatory process” wherein the
decisions have the force of law. KRS 61.880(5). See also Taylor, 483 S.W. 3d at 857. To carry
out this duty, the General Assembly plainly and unambiguously provided the Attorney General
with the discretionary authority to conduct a confidential, in camera, review of additional
documentation, including the records involved, to substantiate an agency’s claimed exceptions.
KRS 61.880(2)(c); Chestnut, 250 S.W. 3d at 660-63; Taylor, 483 S.W. 3d at 857. Like the
Attorney General’s authority to conduct such a review, the Circuit Court’s authority to conduct
an in camera review is also a creature of statute. See KRS 61.882(3). The statute is
unambiguous, providing no exceptions to the Attorney General’s confidential review, and the
Court may not “add” such language. Chestnut, 250 S.W. 3d at 661.
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A. KRS 61.880(2)(c) Clearly Provides the Attorney General with Discretionary Authority to Confidentially Review Records In Camera.
The General Assembly plainly and unambiguously provided the Attorney General with
the discretionary authority to confidentially review records that a public agency claims are
exempt from the Open Records Act. KRS 61.880(2)(c).
“‘The plain meaning of the statutory language is presumed to be what the legislature
intended, and if the meaning is plain, then the courts cannot base its interpretation on any other
method or source.’” Id. (quoting O’Daniel, 153 S.W.3d at 819). Courts “‘… assume that the
[Legislature] meant exactly what it said, and said exactly what it meant.’” Id. (citing O’Daniel,
153 S.W.3d at 819 (internal quotation omitted)). Courts must not interpret a statute to create an
absurd result. Porter v. Com., 841 S.W.2d 166, 168 (internal citations omitted).
Under the Act, when a public agency denies an open records request, it must assert that
the records are exempt from public disclosure under one or several of the exceptions listed under
KRS 61.878. The agency must specify how each exception applies to each record it is
withholding. KRS 61.880(1); see, e.g., 15-ORD-151. The Attorney General’s role as adjudicator
in open records appeals is to “… issue … a written decision stating whether the agency violated
the provisions of KRS 61.870 to 61.884.” KRS 61.880(2)(a) (emphasis added). KRS 61.878
clearly falls within that range. Thus, during appeals under KRS 61.880, the Attorney General
must determine whether the records, if any, fall within any exception the public agency has
asserted. See KRS 61.880.
In plain and unambiguous language, KRS 61.880(2)(c): (1) places the burden of proof on
the agency denying an open records request; (2) provides the Attorney General with
discretionary authority to request the records involved and additional documentation to
substantiate the agency’s denial; and (3) prohibits the Attorney General from disclosing any
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records to the public. KRS 61.880(2)(c).6 The statutory provision contains no qualifying
language restricting the Attorney General’s authority or allowing an agency to refuse the
Attorney General’s request. Neither does the plain language subject the Attorney General’s
review to any superseding laws, nor does it reference other statutory conditions. Rather, the very
purpose of “[t]he Attorney General’s role in the appeal process was []to save the Court time and
costs associated with adjudication and in camera review of substantiating documents relating to
Open Records requests.” Kentucky State Univ. v. The Kernel Press, d/b/a Kentucky Kernel, No.
17-CI-00199, Order at 10 (Oct. 13, 2017). Accordingly, the plain language of KRS 61.880(2)(c)
unambiguously provides Attorney General with discretionary authority to confidentially review
records that a public agency claims are exempt from disclosure under the Open Records Act.
B. The Open Records Act does not Implicate FERPA Because it Precludes Any Public Disclosure of “Education Records.”
FERPA does not prohibit the Attorney General from conducting an in camera review of
records an agency claims are exempt from public disclosure. Rather, FERPA is incorporated as
an exception to public disclosure under KRS 61.878(1)(k). In truth, the Attorney General’s
authority to conduct a substantiating, in camera review does not implicate FERPA because the
Attorney General is an adjudicative officer, in the context of Open Records, and he is statutorily
prohibited from publicly disclosing any records reviewed in camera. See KRS 61.880(2)(c).
1. FERPA does not create an exception to the Attorney General’s authority.
Federal privacy laws, like FERPA, do not bar the Attorney General’s discretionary
authority to confidentially review records in order to substantiate an agency’s denial under KRS
61.880(2)(c). Records protected by FERPA or other federal privacy law are incorporated as
6 The statute assumes that confidential review may justify an extension of time to issue a decision. See KRS 61.880(2)(b)(1).
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exempt from public disclosure to a requester in an open records request under KRS
61.878(1)(k). Pursuant to KRS 61.880(2), the University has the burden of proving its claimed
exemption, and the Attorney General may substantiate through a confidential in camera review
of such records. The Attorney General must never publicly disclose the records and must destroy
them. KRS 61.880(2)(c); 40 KAR 1:030(3).
Contrary to the University’s claims, FERPA does not qualify or create an exception to
either the Circuit Court’s in camera review under KRS 61.882(3) or the Attorney General’s in
camera review under KRS 61.880(2)(c). Rather, as federal law, FERPA is incorporated as an
exemption from public disclosure under KRS 61.878(1)(k), which expressly exempts “[a]ll
public records or information the disclosure of which is prohibited by federal law or
regulation.”(Emphasis added). Both the Kentucky Supreme Court and the Attorney General
recognize that FERPA operates as a bar to disclosure of education records to the public, and that
FERPA is incorporated into the Act by KRS 61.878(1)(k). Foster, 40 S.W.3d at 865.
In the instant case, the University claims that some of the records involved are exempt
from public disclosure and to the Attorney General because they are FERPA “education
records.” (Univ. Compl. at 5, ¶ 14.) However, FERPA is incorporated as an exemption from
disclosure to under KRS 61.878(1)(k), which explicitly allows an agency to refuse disclosure of
“education records” to public requesters – not to the Attorney General. To create such an
exception to the Attorney General’s authority to conduct an in camera review would require the
Court to impermissibly add language to both KRS 61.878 and KRS 61.880(2)(c). Chestnut, 250
S.W. 3d at 661. The language of KRS 61.878(5) further dispels the University’s theory,
providing that provisions of the Act, “in no way prohibit or limit the exchange of public records
or the sharing of information between public agencies when the exchange is serving a legitimate
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governmental need or is necessary in the performance of a legitimate government function.”
KRS 61.878(5).As noted above, the Franklin Circuit Court recently echoed this sentiment,
holding that the Attorney General has the express authority to review records in order to
substantiate an agency’s alleged exceptions under the Act, including those claimed exceptions
based on FERPA. See Kentucky State Univ. v. The Kernel Press, d/b/a Kentucky Kernel, No. 17-
CI-00199, Order at 7-11 (Oct. 13, 2017) (citing KRS 61.880(2)).
In fact, numerous public agencies in the Commonwealth, including the Office of the
Governor,7 have complied with the Attorney General’s requests for confidential, in camera
review under KRS 61.880(2)(c), including records a public agency has withheld from a public
requester as exempt on the basis of federal privacy law8 and attorney-client privilege. Indeed,
several courts have recognized that FERPA is not a greater bar to disclosure than the attorney-
client privilege. See, e.g., Ellis v. Cleveland Municipal Sch. Dist., 309 F. Supp. 1019, 1023 (N.D.
Ohio 2004) (internal citation omitted). Rather, FERPA was designed to “address systemic, not
individual, violations of students’ privacy by unauthorized releases of sensitive information in
their educational records.” Id. at 1023-24 (Emphasis added). Notably, the University itself has
previously submitted records alleging sexual misconduct by a University professor to the
Attorney General for an in camera review during an Open Records appeal. See 99-ORD-039.
Accordingly, FERPA does not create an exception to the Attorney General’s authority to
conduct a substantiating, in camera review under KRS 61.880(2)(c). Such an exception to
adjudicatory in camera review would grant a public agency the right to simply refuse to provide
such records to the Attorney General. The statute’s plain and unambiguous language does not
7 See 16-ORD-039 (The Governor complied with the Attorney General’s request for in camera review of alleged attorney-client privileged records.). 8 See, e.g., 7-ORD-145 (The Attorney General confidentially reviewed HIPAA-protected records.).
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allow for FERPA to be inserted as an exception to the Attorney General’s review. Neither does
the Act restrict transfer of records and information between governmental agencies when it is
necessary in the performance of a “legitimate governmental function.” KRS 61.878(5). Rather, it
is incumbent upon the public agency to meet its burden of proof that certain records are, in fact,
FERPA-protected and thus exempt from disclosure to the public requester.
2. The Attorney General’s in camera review does not implicate FERPA.
The Attorney General’s authority to conduct an in camera review comes with appropriate
procedural safeguards such that FERPA is never implicated. KRS 61.880(2)(c) prevents the
Attorney General from ever disclosing any reviewed documents to the public, whether they be
exempt or non-exempt. See TECO Mechanical Contractor, Inc. v. Com., 366 S.W.3d 386, 397-
98 (Ky. 2012); KRS 61.880(2)(c). The implementing regulation, 40 KAR 1:030(3), further
requires the Attorney General to destroy all of the reviewed records at the time he issues his
decision. Thus, the Attorney General never publicly discloses any of the records involved.
In addition to these protections, when an institution alleges student “education records”
are involved, the Attorney General makes clear, as he did in this appeal, that he will accept the
records involved with the names and personal identifiers of any student redacted. Notably,
FERPA only prohibits the “disclosure,” which is defined as the release of personally identifiable
information contained in “education records” 34 CFR § 99.3. Indeed, KRS 61.878(4) requires
that a public agency separate, such as by redaction, the excepted material from the nonexcepted
material of a public record and make the nonexcepted material available for examination.
Notably, numerous public agencies have provided FERPA “education records” to the
Attorney General for in camera review, without implicating FERPA. See, e.gs. 17-ORD-033
(Northern Kentucky University provided Title IX sexual assault investigation records for in
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camera review); 03-ORD-201 (Kentucky State University provided student arrest and
disciplinary records records); 16-ORD-198 (Christian County Board of Education provided
emails for in camera review). In none of these appeals has FERPA prohibited the Attorney
General’s in camera review, nor has the Department of Education or any other individual or
entity claimed the Attorney General’s review of those records constituted a violation. In fact, the
Franklin Circuit Court ordered Kentucky State University provide records it claimed to be
FERPA “education records” to the Attorney General for a substantiating, in camera review.
Kentucky State Univ. v. The Kernel Press, d/b/a Kentucky Kernel, No. 17-CI-00199, Order at 7-
11 (Oct. 13, 2017) Under the University’s flawed theory, this would violate FERPA. However,
Kentucky State University made the Department of Education aware of this Order, provided the
records to the Attorney General, and the Department of Education has not instituted any action
against Kentucky State.
Because the Open Records Act prohibits public disclosure of any of the confidentially-
reviewed records, FERPA is not implicated by the Attorney General’s in camera review under
KRS 61.880(2)(c). As a result, FERPA does not prohibit the Attorney General’s authority to
conduct a substantiating, in camera review pursuant to KRS 61.880(2)(c).
C. Title IX does not Create an Exception to the Attorney General’s Authority.
The University also claims or at least implies – without support or citation – that Title IX
of the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq., prohibits the Attorney
General from conducting an in camera review to substantiate an agency’s claims during an open
records appeal. (Univ. Compl. at 5, ¶ 14.) The University’s reliance is misplaced.
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The plain and unambiguous language of Title IX, and its implementing regulations, 34
C.F.R. Part 106, immediately and unequivocally lay the University’s claim to rest. Title IX
states, among other things:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…”
20 U.S.C. § 1681(a).
Title IX is not a federal privacy statute. Indeed, although records may be generated as the
result of Title IX implementation or an investigation, the statutory language is devoid of any
express or implied mandate or prohibition on the release or withholding of any records,
whatsoever. Instead, the laudable goal of the statute is to protect people from discrimination
based on sex in education programs or activities that receive federal financial assistance.
Moreover, no Kentucky court has ever endorsed the University’s claim that Title IX
prohibits the Attorney General from conducting an in camera review during an open records
adjudication, nor has any public agency asserted Title IX as a barrier to in camera review.
Rather, even the University has expressly recognized the Attorney General’s authority, under
KRS 61.880(2)(c), to conduct a confidential in camera review of records related to allegations of
sexual misconduct by a University employee. See 99-ORD-039 at 12. Such records are exactly
the kind that might be generated in the course of a Title IX investigation.9 As a result, the
University’s contention that Title IX somehow bars the Attorney General’s authority to conduct
an in camera review is simply incorrect.
9 The University has acknowledged that it only began conducting Title IX investigations in 2013. (See University Response to Open Records Request, (Oct. 28, 2016)) (attached as Exhibit B.) The University later acknowledged that it has long had a duty under Title IX to “…respond to complaints of sex and/or gender based discrimination…” See University Response to The Kernel Appeal, at 2 (Nov. 21, 2016)) (attached as Exhibit E); (See University Response to the Herald Appeal, at 2 (Nov. 30, 2016)) (attached as Exhibit F).
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D. The University Willfully Violated the Open Records Act by Refusing to Provide any Records to the Attorney General.
It is unlawful to refuse to provide records to the Attorney General pursuant to KRS
61.880(2)(c). By refusing to provide any of the records involved to the Attorney General, the
University failed to meet its burden of proof, and severely and unlawfully impaired the Attorney
General’s ability to render a decision. Consequently, the University willfully violated the Act.
1. It is unlawful for a public agency to refuse to provide records to the Attorney General Under KRS 61.880(2)(c).
When a public agency claims exemptions for responsive records, but then refuses to
provide the Attorney General with records to substantiate its claims, the agency undermines the
Attorney General’s ability to issue open records decisions and inhibits transparency. This Court
should declare, as the Kentucky Court of Appeals and the Franklin Circuit Court have held, that
an agency may not withhold records from the Attorney General upon his lawful request under
KRS 61.880(2)(c).
On appeal, the denying agency bears the burden of proof. KRS 61.880; KRS 61.882(3).
In order to substantiate an agency’s claimed exemption, the Attorney General may request and
confidentially review the records involved and other documentation. KRS 61.880(2)(c). “[I]t has
been, and remains, the [Attorney General’s] practice, pursuant to KRS 61.880(2)(c) to conduct
an in camera inspection of the records involved to determine if the agency, against which the
appeal is brought, properly denied access to those records,” when necessary, on a case-by-case
basis. 13-ORD-046 (citing 12-ORD-220 (quoting 08-ORD-052)).
Despite the University’s claim that an agency may refuse to provide the records to the
Attorney General, the Kentucky Court of Appeals has held that an agency willfully violates the
Act if it knowingly refuses to provide records involved to the Attorney General for in camera
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review. See Cabinet for Health and Family Servs. v. Todd Cnty. Standard, Inc., 488 S.W. 3d 1, 8
(Ky. App. 2016) (reasoning “such action frustrates the Attorney General’s substantiating review
under KRS 61.880(2)(c)”). The Court of Appeals went on to recognize that “such result would
subvert the General Assembly’s intent behind providing review by the Attorney General under
KRS 61.880(5).” Id. (“… [agency] cannot benefit from intentionally frustrating the Attorney
General’s review… .”).
The Franklin Circuit Court has also persuasively held – in the context of records
Kentucky State University claimed were FERPA “education records” – that Kentucky State
University’s refusal to provide the records involved for a substantiating in camera review
“undermine[d] the Attorney General’s ability to render Open Records Decisions,” and “thwarts
the public interest in transparency in government.” See Kentucky State Univ. v. The Kernel Press,
d/b/a Kentucky Kernel, No. 17-CI-00199, Order at 7-11 (Oct. 13, 2017). In accordance with the
precedent of the Kentucky Court of Appeals and the persuasive decision of the Franklin Circuit
Court, this Court should rule that an agency’s refusal to provide records to the Attorney General
pursuant to KRS 61.880(2)(c), is a violation of the Act.
2. The University refused to provide any of the records involved for confidential, in camera review.
The University not only violated the Act, but did so willfully. To determine whether a
public agency has violated KRS 61.880(2)(c), the Court need only answer (1) whether the
Attorney General requested records for confidential review, and (2) whether the public agency
provided the records requested. There is no question – and no genuine issue of material fact –
that the University did not provide any of the records involved to the Attorney General for
confidential, in camera review.
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The University admits it did not provide any responsive records to the Attorney General
for a substantiating in camera review. (See Univ. Answer to Int. Compl. at 2, ¶ 4) (admitting
allegations in Paragraph 24 of the Intervening Complaint); (Int. Compl. at 5, ¶ 24.) The
University denied The Kernel’s and The College Heights Herald’s requests for the Title IX
investigation records, asserting FERPA prohibited public disclosure. On appeal, it claimed the
responsive records were preliminary and/or FERPA “education records.” The Attorney General
sought to substantiate the University’s claim via confidential, in camera review. The University
flatly refused, claiming FERPA barred the Attorney General’s confidential in camera review of
any of the records involved. (See Univ. Compl. at 5, ¶ 14.) Specifically, the University stated the
following:
“WKU responded to the Attorney General’s request … . WKU again denied disclosure of the requested investigative files and maintained that the Family Educational Rights and Privacy Act (“FERPA”) prohibits production of the requested records for in camera inspection… .” (Id.)
As discussed above, even where the University refuses to provide records to the
Attorney General on the basis of FERPA, such refusals undermine the Attorney General’s
adjudication of open records appeals, subverts the intent of the Open Records Act, and inhibits
transparency in government. Todd Cnty. Std., Inc., 488 S.W. 3d at 8; see also, Kentucky State
Univ. v. The Kernel Press, d/b/a Kentucky Kernel, No. 17-CI-00199, Order at 7-11 (Oct. 13,
2017). Accordingly, the University’s refusal violated KRS 61.880(2)(c) of the Open Records Act
in the underlying appeal, and this Court should find that the University willfully violated KRS
61.880(2)(c).
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3. The University made misrepresentations to the Attorney General, constituting a separate, indefensible violation of the Act.
As a basis for its unlawful refusal, the University also made material misrepresentations
to the Attorney General and the Court regarding the records involved, constituting a separate
violation of the Open Records Act. The University’s only stated – but incorrect – basis for
refusing the Attorney General was that records involved were FERPA “education records,” and
that FERPA barred the Attorney General’s in camera review. (Univ. Compl. at 5, ¶ 14.) In truth,
the University’s assertion was false. However, during the underlying appeal, the Attorney
General could not substantiate the University’s FERPA claim, because the Attorney General was
refused in camera review of the records.
Only recently, the University acknowledged during discovery – nearly a year after the
Attorney General intervened and more than a year since the Attorney General’s lawful request
for records for in camera review – that at least some of the records involved were not FERPA
“education records,” stating:
“…WKU asserts that all files including any and all information and/or documentation included in those files, are protected by FERPA, with the exception of Cases M, N, R, and T. However, those files identified in the Privilege Log are protected from disclosure pursuant to other exemptions/exceptions provided under the Kentucky Open Records Act, as noted in WKU’s Complaint, the Privilege Log, and which may become subject to subsequent briefing on this issue.”
(Univ. Resp. to CHH Interrogatory No. 2.) (attached as Exhibit J) (emphasis added).
In fact, Counsel for the University admitted during the February 7, 2018 telephonic
hearing with this Court that some, but not all the records in those files are covered by FERPA.
As the University admits that not every single file is a FERPA “education record,” by extension,
none of the documents within those respective files are FERPA “education records.” As a result,
even if FERPA somehow precludes the Attorney General’s review – which it clearly does not –
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the files in Cases M, N, R, and T, and possibly others, were withheld from the Attorney General
as the result of the University’s willful and knowing misrepresentation that these files contained
FERPA “education records,” which the University now admits they do not.
Now, the University claims the records are exempt from public disclosure as
“preliminary.” As recently as 2015, the University provided such records to the Attorney General
pursuant to KRS 61.880(2)(c). 15-ORD-189. In that appeal, upon the Attorney General’s request
for in camera review of the records involved, the University “promptly complied,” providing the
Attorney General with records consisting of personnel records and memos between University
employees – records the University claimed were “preliminary”. Id. In light of the University’s
misrepresentation and its prior compliance, the University’s refusal to provide Cases M, N, R,
and T for in camera review was a clear violation of KRS 61.880(2)(c).
The Court of Appeals and the Franklin Circuit Court have held that such actions
undermine the Attorney General’s adjudication of open records appeals, subvert the intent of the
Open Records Act, and inhibit transparency in government. Todd Cnty. Std., Inc., 488 S.W. 3d at
8; see also, Kentucky State Univ. v. The Kernel Press, d/b/a Kentucky Kernel, No. 17-CI-00199,
Order at 7-11 (Oct. 13, 2017). Indeed, the University’s misrepresentation as to the contents of the
record involved only further confirms the legal and practical necessity of the Attorney General’s
in camera review. As such, this Court should find that the University willfully violated KRS
61.880(2)(c) in refusing to provide Cases M, N, R, and T for a substantiating, in camera review.
CONCLUSION
No genuine issue of material fact exists as to the Attorney General’s unambiguous
statutory authority to request records involved in open records appeals to substantiate any
agency’s claimed exceptions and render a decision. Therefore, the Attorney General is entitled to
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judgment as a matter of law on his claims. The Court should grant this Motion for Summary
Judgment and declare the University’s refusal to comply with KRS 61.880(2)(c) unlawful, enter
a declaratory judgment for the Attorney General regarding his authority under KRS 61.880(2)(c),
remand The Kentucky Kernel’s and The College Heights Herald’s open records appeal to the
Attorney General for appropriate in camera review and adjudication, and permanently enjoin the
University from violating the Open Records Act by refusing to provide records the Attorney
General lawfully requests under KRS 61.880(2)(c).
Respectfully Submitted ANDY BESHEAR ATTORNEY GENERAL /s/Sam Flynn Sam Flynn
Assistant Attorney General Travis Mayo
Executive Director Office of Civil and Environmental Law
La Tasha Buckner Assistant Deputy Attorney General Capitol Building, Suite 118 700 Capital Avenue Frankfort, KY 40601 (502) 696-5300 (502) 564-8310 FAX
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1
COMMONWEALTH OF KENTUCKY WARREN CIRCUIT COURT
DIVISION I CIVIL ACTION NO. 17-CI-00233
COMMONWEALTH OF KENTUCKY, INTERVENING PLAINTIFF ex rel. ANDY BESHEAR, ATTORNEY GENERAL v. WESTERN KENTUCKY UNIVERSITY INTERVENING DEFENDANT
ORDER This matter having come before the Court on the Motion for Summary Judgment of the
Commonwealth of Kentucky, ex rel. Andy Beshear, Attorney General, the Court having
considered the record and being otherwise sufficiently advised;
IT IS HEREBY ORDERED that the motion is GRANTED.
This is a final and appealable order and there is no just cause for delay.
So ORDERED this ____________ day of ______________________, 2018.
HON. STEVE WILSON
JUDGE, WARREN CIRCUIT COURT
DATE: Tendered by: Sam Flynn Assistant Attorney General Office of the Attorney General 700 Capital Avenue, Suite 118 Frankfort, KY 40601
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2
DISTRIBUTION: Thomas W. Miller ( ) Elizabeth C. Woodford Miller, Griffin & Marks, P.S.C. 271 W. Short Street, Suite 600 Lexington, Kentucky 40507 [email protected] [email protected] Hon. Thomas N. Kerrick ( ) Ena V. Demir Kerrick Bachert, PSC 1025 State Street P.O. Box 9547 Bowling Green, KY 42102-9547 [email protected] [email protected] Michael Abate ( ) Kaplan & Partners, LLP 710 West Main Street, 4th Floor Louisville, KY 40202 [email protected] Sam Flynn ( ) Assistant Attorney General S. Travis Mayo Executive Director Office of Civil & Environmental Law La Tasha Buckner Assistant Deputy Attorney General Office of the Attorney General 700 Capitol Avenue, Suite 118 Frankfort, KY 40601 [email protected] [email protected] [email protected]
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