In September, 2016, Attorney General Andy Beshear initiated one of his most significant, if least publicized, legal battles. To preserve the statutory authority of his office in resolving open records disputes, Beshear intervened in a circuit court action pitting the University of Kentucky against its student newspaper.
The issue before the court was the newspaper’s right of access to records documenting allegations of sexual harassment leveled against a professor who, following an investigation, was permitted to quietly exit the university under the terms of a comfortable settlement.
At stake for the Office of the Attorney General was the ability to effectively discharge its duties under a provision of the Open Records Act that authorizes the open records staff to obtain copies of disputed public records for “in camera,” or private, review to independently verify a public agency’s reliance on one of 14, soon to be 16, statutory exceptions.
UK refused to comply with the attorney general’s request to privately inspect the disputed records, and two other universities, Western Kentucky University and Kentucky State University, followed suit.
These issues remain in the courts.
In an unprecedented move, Beshear directly intervened in the case to defend his statutory authority under the Open Records Law and protect the public’s right to know.
It was therefore troubling to learn that Beshear issued an open-meetings decision last week that seriously undermines the public’s right of access to university meetings conducted at the highest levels of administration.
He concluded that the Eastern Kentucky University Council on Academic Affairs, which is identified on EKU’s website as “the major policy-making body for academic programs,” was not a public agency because it “is not created by the Board of Regents or by legislative act, but by a single person, the Provost,” and it “functions to advise the Board of Regents, with no policy or decision-making authority.”
Beshear relied almost exclusively on an advisory opinion issued by the Office of the Attorney General in 1994 that began with the broad disclaimer that it was “not an open meetings decision and consequently (did) not carry the force of law,” and twice admonished that it did not “necessarily represent the direction that subsequent open meetings decisions (would) take.”
The opinion’s author would no doubt be astonished by this outcome.
The attorney general issued the 1994 advisory opinion to provide general guidance to universities on “the extent to which the open meetings law reaches down through layers of administrative organization to affect the day-to-day administrative work of public employees” and specific guidance on “the application of the open meetings law to meetings of the University Senate, faculties of colleges, and faculties of departments.”
All, the opinion concluded, were public agencies.
The opinion defined as a public agency any university committee that consists of “a group of persons acting as a unit, to whom there has been officially delegated the responsibility to consider, investigate, take action on, or report on specific matters entrusted to it.” Noting that “the law applies only to meetings at which public business is discussed or action is taken,” it defined “public business” to include “the expenditure of public funds; the scope or type of services offered by a public agency; regulations, policies, and procedures that affect the manner in which the public agency provides services to the public or complies with its statutory duties; and personnel matters affecting the compensation, benefits, or duties of public employees.”
Sounds a lot like the Council on Academic Affairs whose charge, in EKU’s words, is to “oversee and advise or recommend on academic issues, including programs and curriculum,” and is one step removed from the chief executive officer and governing body of the university. Only the most strained analysis could yield the result the attorney general reached.
Last week’s decision represents a significant blow to transparency in university decision making and a major setback for the Open Meetings Law.
Amye Bensenhaver is an attorney who served for 25 years in Kentucky’s Office of the Attorney General where she specialized in open records and meetings cases.
This op-ed was updated to make clear that Amye Bensenhaver is no longer affiliated with the Bluegrass Institute.