Attorney General Andy Beshear will seek to intervene in the University of Kentucky’s lawsuit against its student newspaper, the Kentucky Kernel, Beshear announced Wednesday.
Beshear said he’s taking the unusual step because UK refused to allow his office to review documents that the school declined to release to the student newspaper. The Kernel had requested investigative documents under the Kentucky Open Records Act in a sexual harassment case against a UK professor who resigned without admitting guilt.
“I do not take this step lightly,” Beshear said “In fact, I am not sure an attorney general has ever intervened in this manner. But what is at stake is too important, and the ramifications are simply too great.”
UK spokesman Jay Blanton reiterated UK’s position that the school is only trying to protect victims of alleged assault.
“We believe strongly in our responsibility to protect survivors who muster the tremendous courage it takes to come forward with accusations of criminal acts,” Blanton said. “We believe strongly that to allow anyone — the press, a member of our university community, an employer, or any private citizen — to access confidential records will have a chilling impact on the willingness of survivors to come forward. We continue to be very disappointed with the Office of the Attorney General.”
Beshear said the power of the attorney general to review withheld records is critical to enforce the open records law.
“Without a review, bad actors could ‘cheat the system’ by claiming a false exemption under federal or state law, and then refuse to provide the records that would refute their claim,” he said.
The attorney general ruled Aug. 1 that records relating to the “university’s investigation of sexual harassment allegations leveled by a student against a professor were not shown to be protected by exceptions and privileges relied upon by the university where (the) attorney general was not given records to review.”
Later, the Kernel obtained the documents from an anonymous source and a spokesman for the victims said they wanted the records made public because they were concerned UK was trying to protect the professor. The Kernel did not identify the victims.
“The University of Kentucky’s lawsuit stabs at the very heart of the open records law and this office’s ability to enforce it,” Beshear said. “In fact, UK would create a silver bullet for any bad actor to entirely avoid the open records law. For a university to push such a position is entirely irresponsible, especially when that university touts a First Amendment center.”
Beshear said the case has been assigned to Fayette Circuit Judge Thomas Clark, who would have to grant the intervention. If granted, lawyers from the attorney general’s office would ask to appear in court. They would solely argue that UK had violated the law by not allowing the attorney general’s office to inspect the documents.
The Kernel supports the attorney general’s request to intervene in the lawsuit, said Will Wright, the Kernel reporter who filed the first open records request in the case.
“The staff has been heartened by all the support we’ve received and this just adds to that,” he said. “Seeing the attorney general intervene shows the importance of this case.”
The Kernel is being represented by Thomas Miller of Miller Griffin Marks, who also represents the Herald-Leader in a lawsuit UK filed against the newspaper over an attorney general’s ruling that found the UK Board of Trustees violated the Open Meetings Act.
UK’s decision to sue the Kernel has prompted weeks of national publicity, nearly all of it critical. The Kernel set up a GoFundMe page with the goal of raising $15,000 to help pay for its legal defense. On Tuesday, the newspaper announced that it had met its goal, thanks to a $7,500 donation from the Kentucky Press Association.
The press association’s Legal Defense Fund has provided newspapers $750,000 over the past 20 years to fight lawsuits, the group posted on its Facebook page.
“Public agencies basically have a bottomless well because of taxpayer dollars available while newspapers are stymied because they don’t have the financial resources like UK and other public agencies,” said KPA executive director David Thompson on the post. “Without that support, some newspapers would have to give up the battle.”
UK has been on the losing end of several opinions by the attorney general’s office in the past year, including one last week that ruled UK violated the Open Records Act by refusing to give the Herald-Leader audits and other documents related to a failed partnership with a Hazard cardiology practice. UK also refused to let Beshear’s office review the documents in that case.
Beshear said he is concerned about UK’s growing aggression toward his office and the state’s transparency laws.
“UK claims that if it decides solely in its own judgment that a document falls under a federal law or the attorney-client privilege that it can refuse to provide that to the AG to confirm it or, for that matter, any court or anyone else,” Beshear said. “Solely in its own analysis, UK says ‘trust us,’ the document is exempt but you can never see it to confirm that. ”
Beshear denied that his intervention was influenced by criticism after Assistant Attorney General Amye Bensenhaver quit his office last week under what she described as duress. Bensenhaver oversaw the office that handled open records and open meetings opinions.
“I strongly disagree that any judgment in open records and open meeting is political,” Beshear said.
Reporter Fernando Alfonso contributed to this story.