OPINION OF THE COURT BY JUSTICE HUGHES.
In 2015 two University of Kentucky graduate students complained of sexual assaults by Dr. James Harwood, a professor in the University's College of Agriculture. The University investigated the allegations, assembled an investigative file and prepared a final investigative report detailing its findings. In February 2016, the University reached a separation agreement with Harwood who left the University with certain continuing financial benefits and with tenure intact. Having received information regarding the foregoing events, The Kernel, the University's student-run newspaper, filed two Open Records Act (ORA) requests pursuant to Kentucky Revised Statutes (KRS) 61.870-.884 seeking disclosure of various documents, including all documents pertaining to the University's investigation of Harwood. Although the University provided some personnel records and a copy of Harwood's resignation letter and separation agreement, a second request for the investigative file was denied. The Kernel requested review by the Attorney General pursuant to KRS 61.880(2), and the Attorney General, after considering the University's legal memorandum, ordered the University to disclose the records with appropriate redactions. The University declined and sought judicial review.
Presented with the University's arguments and The Kernel's response, the Fayette Circuit Court conducted an in camera examination of the investigative file maintained by the University and concluded that the entire file was protected as "education records" under the Family Education Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g. The Court of Appeals reversed the trial court's order, finding that the University failed in the first instance to comply with its statutory obligations under the ORA and, when challenged, failed to meet its burden of showing that the requested records are exempt from disclosure. On discretionary review, we too find that the University failed to comply with its obligations under the ORA and that the trial court clearly erred in finding the entire investigative file exempt from disclosure. For these reasons more fully explained below, we affirm the Court of Appeals and remand this case to the trial court for further proceedings in accord with the ORA and this Opinion.
FACTS AND PROCEDURAL HISTORY
In the summer of 2015 the University received complaints from two female graduate
In the course of its investigation, the EEO assembled an investigative file containing the investigative report; letters from the EEO to specific parties concerning the allegations and final outcome of the investigation; letters written by the EEO concerning the status of developments in the case; emails from the EEO to the two graduate students and other witnesses; the EEO's interview notes; documents supplied by students and witnesses, including the Jane Does; and documents supplied by Harwood. The 470-page investigative file contains student-specific information, including explicit details of the alleged misconduct, witnesses' names and initials, phone numbers, email addresses, home addresses, travel plans, research projects, photographs, text messages, medical information about a party's family member, information about the parties' personal lives, and details about relationships and interactions among people in the relevant department at the College of Agriculture.
In a final investigative report, the EEO concluded that sufficient evidence existed to support a finding that Harwood assaulted and harassed both graduate students. After the EEO relayed its findings to Harwood, he resigned prior to final adjudication. The University and Harwood reached a separation agreement on February 26, 2016 that provided that the University would not initiate proceedings to revoke Harwood's tenure; Harwood would continue to receive his salary with benefits until August 31, 2016, or until he found employment elsewhere if that occurred earlier; and Harwood and his family would continue to receive health benefits from the University through December 31, 2016, or the date Harwood started his new job, whichever came first. Realizing that Harwood could deny the allegations, leave the University quietly and seek academic employment elsewhere, Jane Doe 1 and Jane Doe 2 wanted to remedy a perceived flaw in the Title IX reporting and investigation process by drawing attention to the matter.
The Jane Does reached out to The Kernel through an intermediary, with the goal of exposing Harwood so that his misconduct would not remain hidden. On March 21, 2016, The Kernel submitted the following ORA request to the University:
In response, the University provided the student newspaper with records from its Human Resources Department and personnel records from the Department of Agriculture with redactions and omissions of sensitive personal information. The University also provided The Kernel with copies of Harwood's separation agreement and resignation letter, confirming the University had indeed investigated and addressed the two graduate students' allegations. However, the University declined to produce any other documents because it deemed them "preliminary records," a broad category that encompassed handwritten notes, correspondence and memoranda; records covered by the attorney-client privilege; and/or records containing personally identifiable student information claimed to be protected by FERPA, 20 U.S.C. § 1232g, and its regulations.
On April 7, 2016, The Kernel again requested copies of all records detailing the University's investigation of Harwood. The University again refused in a single-paragraph response, reasoning that The Kernel's requests were for preliminary records which are exempt from disclosure. KRS 61.878(1)(i) and (j). The University also claimed some documents are protected pursuant to KRS 61.878(1)(a) because they contain personal information, and other documents are protected by Kentucky Rule of Evidence (KRE) 503 because they are considered attorney-client privilege/work product material. Notably, the University did not detail the specific contents of the investigative file nor did it invoke FERPA, which it had previously mentioned, or other federal laws which it would later raise as grounds for nondisclosure.
The Kernel appealed the matter to the Attorney General pursuant to KRS 61.880(2). On May 26, 2016, the Office of the Attorney General sent the University a letter with inquiries regarding its refusal to disclose the records, requesting a general description of how the University investigates sexual harassment/sexual assault claims against tenured professors, and what challenges the University believed impeded its ability to redact personally identifiable information. The Attorney General also requested copies of various documents, including the documents already disclosed to The Kernel and the documents the University refused to disclose so the basis for nondisclosure could be substantiated. KRS 61.880(2)(c). In response, the University raised new arguments in a 36-page memorandum but refused the Attorney General's request for copies of both the disputed and undisputed records. Again, the University failed to delineate the withheld documents. The Attorney General later noted that the University did not directly or, in some cases, even indirectly, address that office's inquiries.
On August 1, 2016, the Attorney General rendered a decision in favor of The Kernel.
Pursuant to KRS 61.882 the University sought review of the Attorney General's decision in the Fayette Circuit Court, arguing that the documents withheld from The Kernel are exempt from disclosure under the ORA. The Attorney General intervened in the action to seek a declaration of rights on the issue of the Attorney General's authority to require government agencies to submit to the Attorney General for in camera review those documents withheld from ORA requests.
On November 17, 2016, the Jane Does filed an amici brief before the trial court asserting a position that aligned with the University's. They stated that what began as The Kernel's journalistic search for information had evolved into a public dispute that ignores their interests, noting that The Kernel had published 28 articles about Harwood's misconduct between April and November 2016 despite their requests to stop. They explained that each article forces them to relive the trauma they suffered and that the confidentiality offered to the two graduate students during the EEO's investigation of Harwood was integral to their decision to come forward and report the incidents. The Jane Does feared that releasing the investigative file documents to The Kernel, even with redaction, would allow the public to quickly deduce their identities.
On January 23, 2017, the Fayette Circuit Court entered an order reversing the Attorney General's order. The trial court determined that two of the exceptions to the ORA were relevant to the documents in question: KRS 61.878(1)(a), which excludes the disclosure of "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy ..." and KRS 61.878(1)(k), which excludes the disclosure of "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation...." By virtue of this second exclusion, FERPA, a federal law that controls the use and disclosure of student education records, is incorporated into the ORA's list of exemptions. 20 U.S.C. § 1232g. Under FERPA, no federal funds can be provided to an educational institution that releases education records or personally identifiable
After conducting an in camera review of the investigative file, the trial court determined that the documents are "educational records" pursuant to FERPA. The trial court was persuaded by the holding in Rhea v. District Board of Trustees, 109 So.3d 851, 858 (Fla. Dist. Ct. App. 2013), which adopted a broad construction of "directly related." 20 U.S.C. § 1232g(a)(4)(A)(i). The Florida District Court concluded that "directly related" is not a "primarily related" test and that a record can relate directly to both a student and a teacher. Rhea, 109 So. 3d at 857-58.
In its analysis, the trial court first found that the investigative file relates to a former University professor but also to the two graduate students. Some documents describe their perceptions of the alleged events and the subsequent investigation. The file also contains documents with information about classes, area of study, and matters specifically related to the educational experiences of Jane Doe 1 and Jane Doe 2. Focusing on references to students, the trial court concluded that the various documents at issue are educational records pursuant to FERPA.
The trial court further ruled that given the nature of the documents in the investigative file, coupled with the nature of the facts underlying the investigation, even disclosure of redacted documents would not offer adequate protection:
The trial court reversed the Attorney General's decision, leaving The Kernel with no access to any part of the investigative file.
Two weeks following a hearing on the matter and one day after the trial court entered its January 23, 2017 order, the University for the first time prepared and submitted an index of the "Harwood Investigative File." The University apparently did so only because it was directed to by the trial court. The index, filed over nine months after The Kernel made its first ORA request, includes bullet points with brief descriptions of the contents of each of the ten sections of the investigative file. Examples of document descriptions include "[e]mail correspondence between Complainant 1 and Harwood regarding Harwood's alleged sexual misconduct"; "social media post from the event at which Complainant 2 alleges Harwood's sexual misconduct occurred"; and "Alexander notes from meeting with Student A." The
While most of the documents in the investigative file are Martha Alexander's
Based on the newly-provided index, The Kernel filed a motion to alter, amend or vacate the trial court's order insofar as it concluded that every part of the Harwood Investigative File was protected from disclosure and no part of the file could be redacted so as to protect the Jane Does' identities. The trial court denied the motion but made its January 23, 2017 order final and appealable. As noted, The Kernel appealed to the Court of Appeals where it received a very different ruling.
The Court of Appeals held that the trial court's finding that all records were exempt from disclosure was not supported by substantial evidence. The University failed to explain how specific exemptions applied to particular records, thereby failing to fulfill its statutory ORA responsibilities under KRS 61.880(1), which requires an agency to state the "specific exception authorizing withholding of the record." Quoting Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 88 (Ky. 2013), the Court of Appeals held the ORA does not permit "the nondisclosure of an entire record or file on the ground that some part of the record or file is exempt[.]" The Court of Appeals emphasized that the University belatedly filed a deficient index of the withheld records and did not even attempt to comply with the ORA in any meaningful way. The appellate court also concluded that the trial court made an erroneous factual finding that all the records in the investigative file are covered by FERPA. The Court of Appeals remanded the case to the trial court for the University (1) to separate nonexempt records from records claimed exempt, (2) to redact personally identifying information from exempt records, and (3) to the extent possible without disclosing exempt information, state with exactness why any withheld record is exempt from disclosure.
Having granted discretionary review, heard oral arguments and carefully considered
ANALYSIS
The crux of this case is the interaction of Kentucky's ORA, a statutory scheme that allows public access to records maintained by public agencies such as the University, and FERPA, a federal statute that prohibits the disclosure of a student's educational records without their consent. The trial court made a factual finding that the entire Harwood Investigative File constituted "educational records" under FERPA, and after further concluding that redaction could not adequately protect the two graduate students' privacy rights, deemed all documents within the file totally exempt from disclosure. We review a trial court's factual finding in these circumstances for clear error. New Era, 415 S.W.3d at 78. Here, the trial court clearly erred.
I. The Open Records Act and Public Agency Obligations
The ORA, KRS 61.870-.884, was enacted in 1976 to give the public access to public records in the possession of a public agency, such as the University. KRS 61.871 states the General Assembly's intent as follows:
The ORA generally favors disclosure. See Ky. Bd. of Exam'rs of Psychologists v. Courier-Journal, 826 S.W.2d 324 (1992). However, the right to examine public records is not absolute and KRS 61.878(1) provides fourteen categories of public records that are "excluded from the application of KRS 61.870 to 61.844," including:
As noted, the General Assembly has expressly declared that these exceptions "shall be strictly construed." KRS 61.871. A public agency can deny an ORA request based on one or more of the statutory exceptions but the agency's obligation in those circumstances is clear: "An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." KRS 61.880. "The agency's explanation must be detailed enough to permit the court to assess its claim and the opposing party to challenge it." New Era, 415 S.W.3d at 81. Moreover, "[t]he public agency that is the subject of an Open Records request has the burden of proving that the document
The Kernel requested the Harwood Investigative File, in part, to understand how the University handled the students' complaints and the investigation. The Kernel contends that the University's actions prior to entering into the separation agreement with Harwood should be made public. The public's right to know how effectively public institutions perform their taxpayer-funded functions is unquestionably central to the ORA.
Bd. of Exam'rs, 826 S.W.2d at 328.
Here, two students at a state-funded university alleged they were sexually assaulted by a professor, a public employee, who committed the acts at work-related conferences. The public interest in how promptly, thoroughly and effectively the University responded to those serious allegations is manifest but that does not translate into automatic disclosure of all requested documents. While the ORA favors disclosure, "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity...." Id. The University maintains that the public interest has been served in this case, the "public already knows all it needs to know" and further disclosures would invade the Jane Does' privacy rights. The Kernel responds that it has no interest in revealing the two students' identities or harming them in any way. Rather, The Kernel's primary objective is to understand how the University handled the complaints, investigated the claims and protected the two graduate students as well as any other individuals at the University. In this vein, the newspaper contends the public has a strong interest in the investigatory methods used by a public university in cases such as this generally and in determining specifically whether the University complied in this case with any applicable state and federal laws, including Title IX.
Competing interests are at the core of every ORA case and judicial resolution —the eventual balancing of those interests within the parameters laid out by the legislature—is only achieved when the public agency complies fully with its statutory obligations and this Court's precedent. In City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013), we rejected the proposition that a public agency could invoke a statutory exemption to clothe an entire investigative file with protection from disclosure, thereby avoiding a document-by-document review and detailed response to the ORA requester. Although that case involved a different ORA exemption than those at issue in this case, it merits consideration as we address the University's one-paragraph,
In City of Fort Thomas, id. at 846, the Cincinnati Enquirer newspaper made an ORA request to the City of Fort Thomas seeking to inspect and copy the entire police file generated during a high-profile homicide investigation. At the time, the defendant had been convicted and waived her right to appeal but she had not yet been sentenced. Id. The City denied the request, claiming the exemption to disclosure of records in KRS 61.878(1)(h), which excludes "records of law enforcement agencies ... that were compiled in the process of detecting and investigating statutory... violations if the disclosure of the information would harm the agency ... by premature release of information used in a prospective law enforcement action." Id. at 846-47. The circuit court ruled in favor of the City, but the Court of Appeals remanded for a more particularized consideration of the documents in the police file, rejecting the City's blanket rationale for nondisclosure. Id. at 847.
Similarly, this Court held that a police department's investigatory file is not categorically exempt from disclosure under the ORA merely because it pertains to a prospective enforcement action.
While City of Fort Thomas involved a different ORA exemption, the Court's holding is nonetheless instructive as we review what occurred in this case. The University responded to The Kernel's second ORA request, the April 7, 2016 request, with one paragraph:
No effort was made to itemize the contents of the Harwood Investigative File or even
The University's initial, single-paragraph assertion of a blanket exemption to disclosure of the entire Harwood Investigative File was wholly insufficient. While a line-by-line or document-by-document explanation is not necessarily required in every case, in this particular case the University had only 470 pages to identify/categorize with an explanation of how a particular exemption or exemptions justified withholding the particular document or category of documents. Later, at the direction of the trial court, the University finally offered specific document descriptions, identifying for example, "email correspondence between Complainant 1, Student A and Harwood regarding the night Complainant 1 alleges sexual misconduct occurred"; "social media post from the event at which Complainant 2 alleges Harwood's sexual misconduct occurred"; and "Final Investigative Report." The obligation to obtain this level of response from the public agency is not the trial court's, but rather the agency's obligation in the first instance, a statutory obligation. Here the entire file was treated as a single record, like the investigative file in City of Fort Thomas, a "record" that the University maintained and would neither delineate nor produce. We reiterate that a public agency has the obligation to prove that requested documents fit within an exception to the ORA. Foster, 40 S.W.3d at 868. Under Kentucky law, the University's response to The Kernel's request was required to be "detailed enough to permit the court to assess its claim and the opposing party to challenge it." New Era, 415 S.W.3d at 81. The University failed to meet this requirement.
In essence, the University treated the Harwood Investigative File as if it were one giant record, unable to be separated or compartmentalized when in fact the investigative file is a 470-page collection of various types of records. Grouping all the documents together as one record to avoid production is patently unacceptable under the ORA. KRS 61.878(4) specifically requires that "[i]f any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." Because the investigative file likely contains documents that are excepted under the ORA and documents that are not, the University's duty, as a public agency, was to separate excepted and nonexcepted documents. For each document the University claims can be properly withheld from production pursuant to the ORA, the University had the burden to prove that the document fits within an exception by identifying the specific ORA exception and explaining how it applies. KRS 61.880. The
II. The Family Educational Rights and Privacy Act (FERPA)
Although not cited in its initial April 11, 2016 response to The Kernel's second ORA request, the University eventually relied primarily on FERPA, 20 U.S.C. § 1232g, to defend its refusal to disclose the Harwood Investigative File. The trial court erroneously accepted this federal statute as a basis for nondisclosure of the entire contents of the file under KRS 61.878(1)(k), the ORA exception "for records or information the disclosure of which is prohibited by federal law or regulation."
FERPA, a funding statute, imposes conditions on the availability of federal funds to educational institutions and controls the use and disclosure of students' education records. "Congress enacted FERPA under its spending power to condition the receipt of federal funds on certain requirements relating to the access and disclosure of student educational records." Gonzaga Univ. v. Doe, 536 U.S. 273, 278, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Because FERPA is a federal law regarding access to documents, it is incorporated into the list of exemptions in the ORA, which includes public records the disclosure of which is prohibited by federal law. KRS 61.878(1)(k). FERPA provides, in pertinent part, that
20 U.S.C. § 1232g(b)(1).
FERPA defines an education record:
20 U.S.C. § 1232g(a)(4)(A)(i)(ii).
While the definition of "education record" in the statute and its accompanying regulations is broad, courts have generally defined education records as documents with information about academic performance, financial aid, or disciplinary matters.
The FERPA "education record" exclusion was clearly not intended as an "invisibility cloak" that can be used to shield any document that involves or is associated in some way with a student, the approach taken by the University in this case. We are persuaded that "education
In Hardin County Schools v. Foster, 40 S.W.3d 865, 869 (Ky. 2001), a case involving an ORA request for a statistical compilation of student disciplinary records, the Court interpreted the federal regulation defining personally identifiable information to "include information that makes the identity of the student easily traceable, such as a name, address or personal characteristics." The regulation and this Court's reading of it have thus focused on granular information which can be redacted from education records before production pursuant to an ORA request.
Turning to the case before us, it is not this Court's role to review the investigative file at issue and determine which documents, if any, are education records protected by FERPA and therefore arguably exempt from disclosure or, more likely, subject to disclosure after appropriate redactions. However, even a cursory review of the index the University belatedly provided reveals that a considerable number of the documents in the investigative file cannot conceivably relate "directly" to a student, and therefore would not qualify as an education record under FERPA. Some obvious examples of non-qualifying documents include a camera user manual, the University's policies and procedures regarding sexual harassment and assault, and Harwood's curriculum vitae. These documents are manifestly not education records, raising serious questions about the University's decision to wholly deny the open records request for all documents in the investigative file when some documents very clearly have no protection under Kentucky or federal law. As for other documents that
To reiterate, it was incumbent upon the University in the first instance to specifically claim the FERPA exclusion where legally applicable and to articulate how a given document qualifies as an "education record." Of course, even education records are generally subject to production in redacted form. On remand, the University must fulfill its statutory obligations under the ORA so that The Kernel has sufficient information to challenge any FERPA
We note that the University argues that the entire investigative file constitutes personally identifiable information and it cannot be redacted because the University reasonably believes that The Kernel knows the two students' identities. The above-quoted FERPA regulation states that personally identifiable information includes "[i]nformation requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates." 34 C.F.R. § 99.3(g). This focus on whether anyone at The Kernel knows the Jane Does' identities is immaterial at this point, however, because the first consideration is which, if any, of the requested documents are in fact FERPA-protected education records. If documents exist that constitute education records, then those records can be redacted to remove personally identifiable information, including information that could lead The Kernel to identifying the Jane Does. To the extent the trial court concludes 34 C.F.R. § 99.3(g) may apply in this case, then some fact finding is in order to determine what impact The Kernel's alleged knowledge of the Jane Does' identities should have on the University's ORA production obligations with regard to documents that qualify as FERPA-protected education records.
III. The KRS 61.878(1)(a) Privacy Exemption
The University argues that regardless of whether the Harwood Investigative File contains education records under FERPA, the Jane Does' constitutional privacy rights still prohibit disclosure of any part of the 470-page file. The University relies on federal caselaw characterizing the intimate details of a sexual assault as falling within an individual's constitutionally-protected right to privacy. See, e.g., Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998) (involving a sheriff's release of details of a sexual assault on a victim whose identity was already known to the public due to newspaper coverage). Further, the University asserts that while redacting names and basic identifiers is typically sufficient to protect identities, redaction is constitutionally insufficient if disclosure of the remaining information would allow someone to deduce an individual's identity through a skillful internet search.
The ORA contains a privacy exemption, excluding from disclosure "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1)(a). To determine whether a record was properly withheld under this exemption, "[w]e must balance the interest in personal privacy the General Assembly meant to protect, on the one hand, against, on the other, the public interest in disclosure." New Era, 415 S.W.3d at 82.
In New Era, id. at 78, the Kentucky New Era, a newspaper, filed an open records request seeking copies of certain arrest citations and police incident reports from January 1 through August 31, 2009, out of concern that the Hopkinsville Police Department might be responding inconsistently to similar criminal complaints depending upon the neighborhood involved. After proceedings in circuit court, New Era received redacted copies of all requested law enforcement records. The records contained the names of the individuals involved but their social security numbers, driver's license numbers, home addresses and telephone numbers were removed. Id. at 80. New Era sought discretionary review for the Court to consider whether the Court of Appeals misapplied the ORA in upholding the
In examining the personal privacy interest of the individuals to whom the records pertained, the Court explained that an individual's interest in preventing the dissemination of personal information becomes stronger when the dissemination could subject them to adverse repercussions, such as embarrassment, stigma and reprisal. Id. at 83.
Id. at 85. Likewise, victims of sexual assault at the hands of a public university professor have more than a de minimis interest in the confidentiality of the personally identifiable information they provide to enable the university to investigate the alleged misconduct. While this privacy interest must be recognized and protected, it cannot be the basis for wholesale shielding of public records.
In New Era, the Court reasoned that "where the disclosure of certain information about private citizens sheds significant light on an agency's conduct, we have held that the citizen's privacy interest must yield." Id. at 86. For cases where the public interest is more attenuated, the disclosure of private information may not be warranted. Id. Ultimately the Court concluded that the release of the additional requested information such as the individuals' contact information and social security numbers would "constitute a clearly unwarranted invasion of personal privacy," and therefore the City's redaction of that information did not contravene the ORA. Id. at 88.
So, although the public interest in assessing the quality and thoroughness of a public agency's performance of its duties is always strong, Board of Examiners, 826 S.W.2d at 328, courts must also consider whether a record production will result in an unwarranted invasion of privacy. We cannot say that disclosure of some or even all of the Harwood Investigative File would "constitute a clearly unwarranted invasion of personal privacy" because the privacy concerns presented by disclosure can likely be resolved through careful redaction. Kentucky citizens have a strong interest in ensuring that public institutions, including the University, respond appropriately to accusations of sexual harassment by a public employee. To the extent the personal privacy exemption is claimed as to a particular document on remand, the trial court must balance that interest against the strong public interest in knowing how promptly and effectively the University handled this matter.
The Kernel has no objection to and, in fact, requested the redaction of any information that personally identifies the women Harwood sexually assaulted. We agree with the University that protection of the two graduate students' privacy interests will entail redaction of more than simply names and addresses. The Jane Does were two females in a very small, male-dominated program. Revealing information such as their particular area of study, year of graduate work, names of their advisors, or the years or locations of their sexual assault could lead to their identification. On remand, the University should make its specific privacy interest exemption claims as to the specific requested documents and propose redactions. The trial court can
IV. The KRS 61.878(1)(i) and (j) Preliminary Records Exemptions
Finally, we consider the primary reason the University stated in its April 11, 2016 response as grounds for withholding the entire Harwood Investigative File, i.e., the contents were not subject to disclosure because they were all documents preliminary in nature. The relevant "preliminary records" provisions of the ORA exclude the following from disclosure:
KRS 61.878(1)(i) and (j). The University contends that it took final action on the Jane Does' complaints when it accepted Harwood's resignation and entered into the separation agreement but all records that preceded that event were preliminary in nature and therefore excluded from disclosure. This position reflects a misunderstanding of the relevant ORA exceptions.
In University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 374 (Ky. 1992), the University of Kentucky received a complaint from the National Collegiate Athletic Association (NCAA) regarding alleged rules violations by the University. The University President launched an investigation into the allegations and prepared an official response on behalf of the University which was sent to the NCAA. Id. at 375. The response incorporated transcripts of interviews and documents gathered during the investigation. Id. When the Courier-Journal sought disclosure of the response, the University raised several exemptions to disclosure in the ORA, including KRS 61.878(1)(i) and (j).
Here, the University, through its Office of Institutional Equity and Equal Opportunity, investigated the sexual assault allegations against Harwood and created a "Final Investigative Report" as well as a "Final Determination Letter" sent to Harwood and the Jane Does. The University concedes that it took final action on the two students' complaints when it accepted Harwood's resignation and entered into a separation agreement with him, but it disputes that documents in the investigative file lost their preliminary status when Harwood resigned.
The University correctly points out that nothing in KRS 61.878(1)(i) and (j) states that preliminary materials ever lose their preliminary status yet the Court in Courier-Journal created a narrow exception to the plain language of the statute.
Here, even though Harwood resigned prior to a final adjudication by the University, this fact does not render the investigative file a collection of "forever preliminary" documents. In Palmer v. Driggers, 60 S.W.3d 591, 594 (Ky. App. 2001), a newspaper filed an ORA request seeking disciplinary records pertaining to local police officers. One of the officers who was the subject of a formal complaint, Palmer, resigned during the disciplinary proceedings with the Owensboro City Commission. Id. When the trial court ordered that a redacted copy of the complaint against Palmer be released to the newspaper, Palmer appealed. Id. at 594-95. The Court of Appeals held, correctly in our view, that "a resignation from a position by an employee before the Commission has reached a decision concerning possible termination is a `final action.'" Id. at 597.
Like in Palmer, the effect of Harwood's resignation was to end the investigation and disciplinary proceedings; his resignation constitutes a final action. These parts of the Harwood Investigative File that were once preliminary in nature lost that exempt status when the University agreed to end the investigation and proceedings by accepting Harwood's resignation and entering into a separation agreement. Courier-Journal, 830 S.W.2d at 378. The preliminary document exceptions invoked by the University at one point in these proceedings are thus not applicable and should not be considered on remand.
CONCLUSION
The Open Records Act encourages the "free and open examination of public records" even where examination "may cause inconvenience or embarrassment to public officials or others." KRS 61.871. The University may find The Kernel's ORA requests burdensome and intrusive or even ill-advised but the University is not authorized to decide what public records must be disclosed and what records can lawfully be withheld. Those decisions are ultimately for the courts within the parameters of the ORA, and to facilitate those decisions the University must first fulfill its obligations to the public under the statute and this Court's ORA precedent. We trust that the University will do so on remand and the trial court can proceed to a proper resolution of this unnecessarily protracted open records action. Accordingly, we affirm the Court of Appeals and remand this matter to Fayette Circuit
All sitting. All concur.
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