Fair warning: if you need to file an open records request to get information from UK anytime soon, you may want to start thinking about a Plan B.
The University of Kentucky’s open records office is very, very behind, as in there was a backlog of 92 requests as of Oct. 7. Records requests filed by the Kernel in September and October remain unfulfilled, stuck in a seemingly endless delay.
Kentucky’s Open Records Act (ORA) attempts to make the activities of agencies that receive government funding, like public universities, more transparent. When an agency receives a request, it has five business days to respond; if not, it is in violation of the law.
If a records requestor doesn’t receive a timely response or is denied records for a reason they believe to be invalid, they can take their case to the Kentucky attorney general and, if necessary, file a lawsuit against the agency.
This happened in the James Harwood case, a six-year open records battle between the Kentucky Kernel and the University of Kentucky that the Kernel won this spring.
In 2015, the Kernel filed an open records request for records related to the investigation into Harwood, who was accused of sexual assault and harassment against two graduate students, but UK refused to cooperate. According to the Kentucky Supreme Court’s opinion, the university “did not even attempt to comply with the ORA in any meaningful way,” dragging its feet with insufficient and invalid blanket exemptions the entire way.
After the Kentucky Supreme Court ruling, the Kernel thought things would be better. UK’s obligation to respond to and fulfill requests in a timely manner now had a clear legal precedent backing it. Unfortunately, that has not been the case.
On Aug. 27, a Kernel reporter filed an open records request. They never received a response, so they filed a new request on Sept. 30. It was only after the second request that the university responded.
On Sept. 28, another Kernel reporter filed a request. After over five business days had passed, the reporter emailed a reminder of the university’s legal obligation to respond to the open records office on Oct. 7. It was only after the reminder that the university responded.
The Lexington Herald-Leader also filed several requests beginning in late September, with no response from the university until the reporters pressed them for an update, according to the Herald-Leader’s editor-in-chief Peter Baniak.
In all instances, the newspapers received the same response. The director of open records, Amy Renee Spagnuolo, had been out of the office from bereavement for an undisclosed period of time and had lost her assistant due to an illness. When Spagnuolo returned to her office, she had a backlog of 92 requests.
While UK spokesperson Jay Blanton told the Kernel that the university was working on rehiring staff and utilizing lawyers and paralegals to lighten the load in the meantime, the office still seems to be moving at a snail’s pace. On Oct. 27, 14 business days after one of the Kernel’s original requests, they were still number 66 in the queue. That’s 27 spots in 14 days, amounting to an average of less than two requests fulfilled a day.
This is unacceptable. While the Kernel has the utmost sympathy for Spagnuolo’s losses, the ability of a public university to comply with its legal duty to fulfill open records requests in a timely manner should have never depended on one or two people’s ability or inability to work. I recognize the strain that COVID-19 has placed on staffing, but the pandemic is not a blanket excuse for failing to follow the law.
In many ways, this feels like a repeat of the Harwood case. The university’s excuses don’t fully account for the extent of the backlog, and whatever outside help the open records office is receiving is clearly not sufficient.
The news cycle is, by nature, constantly moving. What is news in September is irrelevant and forgotten by November.
If UK can use low staffing as an excuse to delay the release of records past the required five days, potentially until the news cycle moves on and thereby softening the blow of negative publicity, why would the university ever invest in adequate staffing or make an effort to move more quickly?
UK needs to do better.
The Kernel just got out of an open records lawsuit. Personally, I have no desire to get into a new one.