UK shows contempt, disrespect for attorney general, retired official says
September 2, 2016
UK has shown contempt and disrespect for the attorney general’s enforcement of the state’s open records and open meetings laws, a retired assistant attorney general said Friday.
Amye Bensenhaver, who retired Wednesday after 25 years in the office, said UK has a long history of disrespecting the attorney general, and of not following the state’s open records and open meetings laws.
The university’s recently filed lawsuit against the independent student newspaper, the Kentucky Kernel, raises questions about how the university perceives the law and the authority of the attorney general’s office.
Bensenhaver said UK has in recent years focused more on its own image than its duty to the public and the law.
“The public’s right to know often had to surmount whatever the selfish interest of the university might be,” she said. “That sort of perspective has been lost at UK.”
The Kernel suit involves documents about an associate professor accused of sexual assault and sexual harassment. The Kernel asked UK for records detailing the accusations, but UK refused to release them.
The attorney general’s office — a constitutional state office that determines whether records should be made public — asked UK to release the documents to the attorney general’s office for review.
UK refused even though public institutions are required under law to release documents to the attorney general.
That disregard for the law worries Bensenhaver. She said if other institutions follow UK’s approach, it could undermine the authority of the attorney general and open records law.
Related: UK follows through on promise of suit against Kernel
The attorney general ultimately ruled UK should release the records to the Kernel. UK appealed that ruling in Fayette County Circuit Court by filing a lawsuit against the newspaper.
Bensenhaver cited other examples of UK breaking the law, including a recent appeal made by the Lexington Herald-Leader that UK broke the open meetings law.
UK spokesman Jay Blanton said the university receives about 800 open records requests every year. The vast majority of those requests go through without issue.
As for Bensenhaver’s remarks on the conflict between the attorney general and UK, he said, “We greatly respect Ms. Bensenhaver’s quarter century of public service.”
UK offered no further comment.
William Thro, UK’s legal counsel, did not respond to a request for comment from the Kernel.
Bensenhaver said Thro often uses unsound legal arguments and has been dishonest when the university explains why it withholds documents from people who request them.
In response to the Kernel’s request for documents about the associate professor, Thro indicated that just one person filed a complaint about the professor.
In fact, two students filed complaints, and several others said they were harassed by Harwood.
This dishonesty and UK’s lack of cooperation has become more serious since Thro was appointed as the university’s legal counsel in 2012, she said.
“He is really not serving that client, the University of Kentucky, well at all. He’s making the same arguments again and again and again,” Bensenhaver said. “Their approach is extremely bizarre, and I think at some point they’re going to have to acknowledge it’s not a winning approach.”
Frank LoMonte, director of the Student Press Law Center, said UK is one of many universities that acts as if it is above the law.
The attorney general’s review process is the state’s way of holding government agencies like UK accountable to the public.
“The University of Kentucky has convinced itself that it doesn’t have to respect that process,” LoMonte said. “It is as if the university is convinced that its lawyers are smarter than the attorney general, and that their opinion is the only one that matters.”
Universities across the country abuse open records laws and use unsound legal defenses to keep documents from the public, Lomonte said.
In some states, including Georgia and Arkansas, public officials who break open records or open meetings laws can lose their jobs and be subject to personal fines.
LoMonte said this is one way the government could hold university officials more accountable.
As the system stands in Kentucky, UK and other public institutions can violate the law with little consequence.
Courts can impose steep penalties, however, and can require institutions to pay for the legal fees of the other party.
In 2013, a judge ordered the Kentucky Cabinet for Health and Family Services to pay a $756,000 fine for violating the Kentucky Open Records Act.
“It should absolutely be on the grounds for forfeit of your employment if you are wrongly concealing documents, and that includes not cooperating with the attorney general,” LoMonte said. “There has to be a meaningful price to be paid.”
In the case against the Kernel, UK could appeal to a higher appellate court if the Fayette County Circuit Court rules in favor of the Kernel.
Bensenhaver said she thinks UK will appeal again if it loses in circuit court. She said she hopes this case will set precedent that strikes down UK’s legal reasoning for withholding documents.
Similar appeals with other public agencies have taken upwards of five years to complete.