By Frank LoMonte
Writer, Student Press Law Center
This article was originally published Sept. 22, 2016
Kentucky’s two largest public universities are rivals in academics and athletics, but seem in recent weeks to have found common ground in an unlikely area: legal action surrounding their adherence to public-records laws.
The Kentucky Center for Investigative Reporting (known as “KyCIR”) announced last week it was suing the University of Louisville Foundation, an external nonprofit that manages the University of Louisville’s $730 million endowment.
The suit means the University of Kentucky has company when it comes to fighting open-records requests. The commonwealth’s attorney general said in a complaint earlier this month that UK is willingly violating open-records laws in refusing to turn over records to the Kentucky Kernel, UK’s student-run newspaper.
The new complaint, citing numerous prior legal rulings that the UL Foundation is a state agency subject to the same records standards as the university itself, makes allegations similar to those filed at UK. It arises from the Foundation’s refusal to fulfill public-records requests from Brendan McCarthy, managing editor of KyCIR.
“The (University of Louisville) Foundation willfully violated the Open Records Act by failing to timely respond to either of McCarthy’s initial requests for documents,” reads the complaint, filed in Jefferson Circuit Court.
KyCIR has previously sued the University of Louisville itself for failure to comply with records requests.
“We have several instances in which the university has either delayed, failed to respond or just stonewalled our requests for public records,” McCarthy said.
But even the university has taken issue with the foundation’s records-request compliance practices. In a 14-1 vote earlier this month, UL’s Board of Trustees decided that it may sue the foundation if it does not turn over financial documents.
“That pathway towards restored confidence for our community is critical at this most vulnerable time for the reputation of our university, which quite frankly has been damaged severely because of the secrecy and the veil of secrecy and the shenanigans… that have gone on at the University of Louisville Foundation,” Larry Benz, the chairman of the university’s board of trustees, told Insider Louisville.
Two of the University’s major donors also threatened to withhold further contributions from the Foundation, which has seen the value of its endowment recently plummet, until an independent audit is conducted.
The foundation does seem to be making progress, as it hired two new employees to assist with records requests at its most recent meeting. A foundation spokesman did not immediately return SPLC’s request for comment, but Brucie Moore, its newly elected chair, spoke to the records issue in a recent statement.
“I plan to request that the board consider retaining additional outside counsel to assist Foundation personnel in the management of open records requests, to be charged with assuring the Foundation complies with the letter and the spirit of Kentucky’s open records laws,” Moore said in a press release prior to the foundation’s Sept. 20 board meeting. “I pledge to expeditiously comply with, to the best of our ability, all of the Foundation’s obligations as they relate to open records. Transparency is extremely important to me and I promise quick action on existing and future requests.”
Kentucky’s Attorney General and Supreme Court have both ruled that the foundation is a public agency subject to open-records laws. The issue dates back over a decade, as a 2008 decision from the Kentucky Supreme Court begins by citing a records request made by the Louisville Courier-Journal in 2001.
The final straw preceding the latest suit was the foundation’s refusal to comply with KyCIR’s request for financial and conflict-of-interest disclosure forms.
“In our case, the Kentucky Center for Investigative Reporting is a fairly new newsroom,” McCarthy said. “Part of our mission is to fight for and advocate for public transparency and access to records that are in the public’s interest. So for us, we’ll keep fighting that fight until we’re successful across the board.”
Note from the editor:
This story was authorized for reprint by the Student Press Law Center under creative com- mons usage. According to splc. org, “The Student Press Law Center is an advocate for student First Amendment rights, for freedom of online speech, and for open government on campus. The SPLC provides infor- mation, training and legal assistance at no charge to student journalists and the educators who work with them.”
“Since 1974, the Student Press Law Center has been the na- tion’s only legal assistance agency devoted exclusively to edu- cating high school and college journalists about the rights and responsibilities embodied in the First Amendment and sup- porting the student news media in their struggle to cover im- portant issues free from censorship. The SPLC provides free legal advice and information as well as low-cost educational materials for student journalists on a wide variety of topics. In addition, the SPLC operates a formal Attorney Referral Network of approximately 150 lawyers across the country who are available to provide free legal represen- tation to local students when necessary. Approximately 2,500 student journalists, teachers and others contact the SPLC each year from all 50 states and the District of Columbia.”