Cabinet For Health and Family Services v. The Courier-Journal - Franklin Circuit Court - NO. 18-CI-1036

Entered 18-CI-01036 04/17/2019 Amy Feldman, Franklin Circuit Clerk
COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION I
CIVIL ACTION NO. 18-CI-1036
COMMONWEALTH OF KENTUCKY, PLAINTIFF

CABINET FOR HEALTH AND FAMILY SERVICES
v. OPINION & ORDER
THE COURIER-JOURNAL, INC. DEFENDANT
This matter is before the Court on Cross Motions for Summary Judgment. The parties
appeared before the Court during Motion Hour on February 6, 2019, with Michael P. Abate
appearing on behalf of Defendant The Courier-Journal, Inc. (“Courier-Journal”) and David T.
Lovely appearing on behalf of Plaintiff Cabinet for Health and Family Services (“Cabinet”). At
that time, the Court ordered CHFS to submit unredacted versions of the documents at issue for an
in camera review. Having now reviewed those documents and considered the arguments of
counsel, and being otherwise sufficiently advised, the Court hereby GRANTS the Courier-
Journal’s Motion for Summary Judgment and DENIES the Cabinet’s Motion for Summary
Judgment, for the reasons set forth below.
BACKGROUND
On June 4, 2018, Adria Johnson resigned from her position as the Commissioner for the
Cabinet’s Department of Community Based Services (“DCBS”). In her letter of resignation,
Commissioner Johnson stated that she had experienced “a pattern of repeatedly being discounted
and never having been empowered with the autonomy to fully function in [her] role as
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Commissioner.” Def.’s Mot. Summ. J. Ex. 5. She further noted that her employment with the
administration of Governor Matt Bevin had been “dismissive, disrespectful, discriminatory and
incredibly disappointing.” Id.
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The circumstances of Commissioner Johnson’s resignation were detailed further in a
demand letter sent to the Cabinet’s legal counsel on or about June 11, 2018. The letter explained
that during Ms. Johnson’s tenure as Commissioner of DCBS, the Governor had effectively
removed her from responsibility over policy development on foster care and adoption (a central
duty of DCBS). More specifically, the Governor had appointed a Special Advisor who had no
prior professional background, training, or experience in foster care or adoption and received more
than double the salary of Commissioner Johnson. When that gubernatorial appointee ultimately
resigned after a few months without producing any formal report or recommendations, the duties
over foster care and adoption were not restored to Commissioner Johnson. Rather, they were re-
assigned to another white male political appointee who also lacked any apparent professional
background, education, training, or experience in the field of foster care or adoption. These
management decisions of the Cabinet and the Governor’s office caused Commissioner Johnson to
conclude that she was being by-passed on one of the central functions of DCBS.
After receiving this demand letter, the Cabinet investigated Commissioner Johnson’s
allegations and compiled a Report of Investigation. On June 11, 2018, a reporter for the Courier-
Journal emailed the Cabinet a request under the Kentucky’s Open Records Act, KRS 61.870 et
seq. That request sought “all records related to the resignation of Adria Johnson as Commissioner
of the Department of Community Based Services at the Cabinet for Health and Family Services,”
including “any letters or emails related to the resignation.” Def.’s Mot. for Summ. J. Ex. 1. The
Cabinet did not respond to this initial request, presumably because it had not been “hand delivered,
mailed, or sent via facsimile” as required by KRS 61.872(2). As a result, the Courier-Journal
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submitted a second request on July 5, 2018, again seeking “all records” related to Ms. Johnson’s
resignation, including “any letters, memos or emails related to the resignation.” Id. Ex. 2.
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The Cabinet responded to this second request by letter dated July 10, 2018. The Cabinet’s
letter explained that the requested documents were not readily available, citing Kentucky Revised
Statutes (“KRS”) 61.872(5), and requested additional time to review the documents.1 Id. Ex. 3.
On July 13, 2018, the Cabinet issued a second letter, as well as approximately thirty-six pages of
heavily-redacted documents. Id. Exs. 4, 5. The letter explained that the “[n]ames of alleged
perpetrators and witnesses interviewed in connection with allegations that were ultimately found
to be unsubstantiated, as well as surrounding information that could reasonably lead to
identification of those individuals, has [sic] been redacted in accordance with” KRS 61.878(1)(a),
the Act’s personal privacy exemption. Id. Ex. 4.
The Courier-Journal appealed to the Office of the Attorney General (“OAG”) pursuant to
KRS 61.880(2)(a). The Cabinet then supplemented its response, arguing that the unique facts of
the case required redaction of names and other identifying information. Specifically, the Cabinet
asserted that the involved individuals, including the accused, worked in such a small department
at the Cabinet that “it [is] quite likely that disclosure of the witness names would, by process of
elimination, lead to identification of the alleged perpetrator(s), as the name(s) of the alleged
perpetrator(s) would be conspicuously absent among the witnesses interviewed.” Pet.’s Mot.
Summ. J. Ex. 6. The Cabinet also referenced the open records laws of other jurisdictions, which
may allow for the redaction of witness names in sexual harassment investigations. Id.
To resolve the appeal, the OAG requested the unredacted documents for in camera review,
as authorized by KRS 61.880(2)(c) and 40 KAR 1:030 Section 3. The Cabinet declined to provide
the records, arguing that compliance with the OAG’s request is permissive rather than mandatory.
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See Mot. for Summ. J. Ex. 8. The Cabinet also cited to a previous OAG decision in which the
1
The OAG found that this response violated KRS 61.872(5), which requires a “detailed explanation” for the
delay.
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OAG found the redaction of a complainant’s name to be appropriate under the personal privacy
exemption. Id. Thus, the Cabinet argued, the OAG could rely on that previous ruling and did not
need to review the records. Because the Cabinet refused to disclose the records, the OAG found
that the Cabinet had failed to satisfy its burden of proof or, in other words, failed to substantiate
the claimed exemption as required by KRS 61.880(2)(c). The Cabinet then initiated this appeal,
and both parties now move for summary judgment.2
To aid the Court in resolving these motions, the Cabinet provided unredacted copies of the
records at issue. Having reviewed both the redacted and unredacted versions, the Court finds that
there are two issues in dispute. The first of these issues involve allegations of workplace
misconduct, which concern a handful of inappropriate comments made by a supervisor to
Commissioner Johnson. These comments are detailed in Commissioner Johnson’s resignation
letter, as well as her demand letter.
The investigation into these comments appears to have been conducted in a very
professional manner, but it was hampered by the refusal of Commissioner Johnson to participate.
As with many such allegations, the degree of inappropriateness of these comments depends highly
on the factual context and perceptions of the intent of the speaker, as well as the perceptions of the
person to whom they were directed. Reasonable people may disagree on whether any of the
comments, alone or collectively, rise to the level of sexual harassment or a hostile work
environment. Because Commissioner Johnson refused to participate, the internal investigation
provides no information about her perspective on the offensive statements, the factual context, or
her perceptions of the intent behind the statements. The investigation therefore failed to
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substantiate the allegations of misconduct, but it cannot be said that the internal investigation
2
The Courier-Journal also requests attorney’s fees and statutory penalties.
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exonerates the supervisor. Nevertheless, the Cabinet concluded that the privacy exception to the
Open Records Act should shield disclosure of any information that would identify the supervisor
who allegedly made the offensive statements.
Thus, this portion of the dispute concerns whether a public agency may redact the name of
a public official who has been accused of making statements that constitute sexual harassment (or
of creating a hostile work environment based on inappropriate comments related to sex), when the
agency’s internal investigation has failed to substantiate those allegations. This secondary dispute
gave rise to most of the redactions made by the Cabinet.
As the unredacted documents demonstrate, however, Commissioner Johnson’s primary
concern was not the handful of inappropriate comments. Rather, her primary concern was in a
critical area of public policy, namely, Governor Bevin’s efforts to reform foster care and adoption,
which was within her statutory purview as DCBS Commissioner. Commissioner Johnson alleged
that her ideas had been ignored in favor of input from outside (male) advisors, who appear to have
had no background, training, education or experience in the field of foster care and adoption. For
example, the redacted information shields from public view Commissioner Johnson’s concerns
that the man appointment by the Governor to be his chief foster care and adoption advisor—at an
exorbitant salary—was not qualified for the job. When that high level advisor resigned without
creating any discernable work product, Commissioner Johnson’s concerns were exacerbated
because those duties were not restored to her and DCBS but were instead re-assigned to another
high level male gubernatorial advisor, who Commissioner Johnson alleges circumvented her again
in favor of advisors from another state.

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Thus, while allegations of workplace misconduct (i.e., inappropriate sexual comments) are
discussed in these documents, the primary issue in this Open Records dispute stems from public
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policy concerns related to the Bevin Administration’s efforts to reform foster care and adoption.
With this context in mind, and having fully reviewed the briefs and considered the arguments of
counsel, the Court now rules as follows.
STANDARD OF REVIEW
Pursuant to KRS 61.882(3), this Court reviews the decision of the Attorney General de
novo. Thus, this Court may grant summary judgment only if it first concludes that there is no
genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.
See CR 56.03. However, the Court notes that an Attorney General’s opinion, while non-binding,
is “highly persuasive.” York v. Commonwealth, 815 S.W.2d 415, 417 (Ky. App. 1991) (citation
omitted). Regardless, the Court ultimately must decide Open Records Act disclosure issues on a
case-by-case basis. See, e.g., Kentucky Bd. of Exam’rs. of Psychologists v. Courier Journal &
Louisville Times Co., 826 S.W.2d 324, 327–28 (Ky. 1992).
ANALYSIS
I. The Cabinet improperly redacted certain identifying information under the Act’s
personal privacy exemption.
Kentucky’s Open Records Act “seeks to ensure the free and open examination of public
records.” Cape Publications, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818,
821 (Ky. 2008). Thus, the Act ensures that public records may be freely inspected by any person,
unless otherwise expressly exempt from disclosure. See KRS 61.872(1). This reflects the “basic
policy” of the Act “that free and open examination of public records is in the public interest.” KRS
61.871. The Supreme Court of Kentucky has elaborated further, stating, “The public’s ‘right to
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know’ under the Open Records Act is premised upon the public’s right to expect its agencies
properly to execute their statutory functions.” Kentucky Bd. of Exam’rs., 826 S.W.2d at 328. Thus,
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“inspection of records may reveal whether the public servants are indeed serving the public, and
the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.” Id.
Thus, the Act “exhibits a general bias favoring disclosure,” or simply put, a presumption
that the requested documents must be disclosed. Kentucky Bd. of Exam’rs., 826 S.W.2d at 327.
However, KRS 61.878 enumerates specific exemptions. At issue in the present suit is the “personal
privacy exemption,” which allows a public agency to withhold “[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).
Specifically, the current case presents the issue of whether a public agency should redact
the names and identifying information of an accused, witnesses, and other involved individuals
when the underlying complaint was found to be unsubstantiated after an internal investigation.
The Court recently considered this same question in Finance and Administration Cabinet v.
Kentucky Public Radio, Inc., Civil Action No. 18-CI-335 and Labor Cabinet v. Kentucky Public
Radio, Inc., Civil Action No. 18-CI-422. In those cases, the Court conducted the same analysis,
much of which is recited below, and reached the same conclusion: the public’s interest in reviewing
the records outweighed the privacy interests of the public employees, and the Court ordered the
redacted information to be released. However, these matters must be considered on a case-by-case
basis, and the Court conducts the following analysis after careful consideration of the unique facts
of this case.
First, the Court must determine that the information at issue is “of a personal nature.” Zink
v. Dep’t of Workers’ Claims, 902 S.W.2d 825, 828 (Ky. Ap. 1994). If the requested information
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is of a personal nature, the Court must then balance the competing interests, namely, the privacy
interest in nondisclosure of the personal information and the public’s right to inspect whether its
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agencies are properly performing their public functions. Id. In the present case, the Court has
reviewed both the redacted and unredacted versions of the documents at issue. One category of
redactions includes the names and other identifying information (i.e., job titles and departments)
of the complainants, accused parties, and witnesses.3
The remainder of redactions appear to be designed to obscure the identities of the public
employees involved, as well as the nature of the controversy that gave rise to Commissioner
Johnson’s resignation. For example, the first allegation of the report is redacted to read, in part:
“On or about . . . of the Cabinet . . . who occupied a position . . . Ms. Johnson and had the
ability . . . within the Cabinet.” The redacted portions include the date of the incident, the name
of Governor Bevin (as the official who appointed the accused), and the name of the accused.
However, the redacted versions reveal that the accused held “a position of authority” over the
complainant and “had the ability to control the trajectory of her career within the Cabinet.” Similar
redactions are made throughout the report. Such details are not typically considered information
“of a personal nature.” The Cabinet argues, however, that this information would lead to the
identification of the involved individuals and should therefore be considered personal information.
While the Court does not consider such employment information “personal”, even if it is
categorized as “personal”, any privacy interests are outweighed by the public interest involved, as
explained herein.
Assuming for purposes of analysis that this information could be construed to be personal,
the Court must next consider the privacy interests involved in nondisclosure of such information, OPOR : 000008 of 000029
3
In the Court’s opinion, none of the redacted information concerns truly personal matters. All of the redacted
information concerns public employees and their workplace interactions while on the public payroll. There is no
information concerning children, spouses, personal health issues (with the exception of one employee’s health
information, discussed in more detail herein), or any matter that can remotely be considered private. Regardless, even
if the redacted information is considered “personal” for purposes of the personal privacy exemption, the information
is still subject to disclosure, for the reasons explained in this opinion.
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as well as the public interest in disclosure. In doing so, the Court takes notice that, “[a]t its most
basic level, the purpose of disclosure focuses on the citizens’ right to be informed as to what their
government is doing.” Zink, 902 S.W.2d at 828. For example, through disclosure of complaints
and investigation materials, the public can discern whether a publicly-funded state agency
effectively investigates and addresses the misconduct of its employees. This sheds light on the
behavior of government employees, as well as the efficiency and productivity of our state
workplaces. Perhaps more importantly, it ensures that investigations are handled competently and
without favoritism.
The Cabinet, however, argues that this public interest is outweighed by the privacy interests
involved. For example, the Cabinet cites to Kentucky New Era, Inc. v. City of Hopkinsville, 415
S.W.3d 76 (Ky. 2013) for the proposition that “an individual’s privacy interest ‘becomes stronger
with regard to personal information the dissemination of which could subject him or her to adverse
repercussions,’” such as embarrassment or physical harm. Resp.’s Mot. Summ. J. 5 (quoting
Kentucky New Era, 415 S.W.3d at 83). This, the Cabinet acknowledges, must be balanced against
the public’s interest in “know[ing] how the Cabinet responded to Ms. Johnson’s allegations,” but
this can be accomplished without disclosure of the names of the accused and witnesses. Id.
To support this statement, the Cabinet turns to a November 2017 letter in which the OAG
responded to an Open Records Act request for records related to sexual harassment, discrimination,
or assault complaints made by public employees. In that case, the OAG redacted the names of the
complainant under the personal privacy exemption. In explaining its decision, the OAG cited to
Lawson v. Office of the Attorney General, 415 S.W.3d 59 (Ky. 2013) for the proposition that “in
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the absence of some substantial countervailing public purpose, records identifying or pertaining to
identifiable witnesses, victims, and uncharged suspects of crimes or other statutory violations
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generally may not be disclosed.” Resp. Mot. Summ. J. Ex. 1. The OAG explained that the
complainant in that case was the victim of alleged harassment and “disclosing the name of the
complianee [sic] reveals nothing to the public about how the OAG handles complaints and
conducts investigations of alleged harassment.” Id.
First, it is important to note that the adequacy or appropriateness of the OAG’s 2017
responsive letter is not before this Court. It is merely the OAG’s one-and-a-half-page response to
an Open Records Act request; it is not binding precedent nor even a persuasive opinion, and it was
not appealed. Furthermore, it reveals little of the facts surrounding the requested documents or
the redactions. Thus, the Court cannot discern the OAG’s basis for claiming that, under the facts
of that particular case, disclosure of the complainant’s name would reveal little about the OAG’s
investigative process. Under the unique facts of the present case, however, this Court finds that
revealing the names of the victims, perpetrators, and witnesses is the only way to determine
whether the investigative process was hampered by personal bias or political favoritism.
In addition, the Kentucky New Era case is easily distinguishable from the present case.
Kentucky New Era involved an Open Records Act request for copies of arrest citations and incident
reports involving the Hopkinsville Police Department. The City Clerk initially withheld records
involving juveniles and open cases in their entirety and redacted from the remaining documents
some names, all social security numbers, home addresses, and other similar personal information,
and demographic data such as birth date, marital status, gender, race, and ethnicity. After an in
camera review in circuit court, the court ordered that all of the requested documents be provided,
with the only redactions being the names and personal data of juveniles, social security numbers,
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driver’s license numbers, home addresses, and telephone numbers. On appeal, the Kentucky
Supreme Court affirmed the lower court’s decision.
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It is clear that Kentucky New Era differs in several respects from the current case. First,
the redacted information in that case included social security numbers, driver’s license numbers,
home addresses, and personal telephone numbers. This highly sensitive data is routinely redacted
under the personal privacy exemption. In addition, as the Supreme Court explained in Kentucky
New Era, the disclosure of such information failed to serve the public’s interest in monitoring the
police department. In this case, however, the redacted information reveals the identities (not the
home addresses or personal telephone numbers) of public employees, including accused
individuals. Where the public’s interest lies in evaluating the legitimacy of an agency’s
investigation—specifically, whether it was influenced by favoritism—the identities of the public
officials and employees involved are clearly relevant.
More importantly, though, is the distinction between the private citizens referenced in the
police reports in Kentucky New Era and the public employees named in workplace misconduct
reports in the present case. As the Court has previously held, such records—meaning those
involving allegations of workplace misconduct in a public agency involving public employees
working “on the clock”—must be characterized as presumptively public. If the allegations are
substantiated, the public has a right to know if discipline has been properly administered. If the
allegations are unsubstantiated, the public has a right to know if the internal investigation was
thorough, unbiased, and competent, or whether it was a “cover up” of misconduct based on
personal or political favoritism. If there is a persistent problem with unsubstantiated allegations
in a public workplace, that alone is a legitimate matter of public concern and raises questions about
the personnel management practices and efficiency of the public agency.

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Moreover, this Court takes judicial notice that many incidents of harassment or sexual
misconduct in the workplace, which were never “substantiated” through an internal review,
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nevertheless have resulted in litigation in this Court that has imposed significant costs in time,
defense fees, and judgments that have been borne by the taxpayers. See, e.g., Booker v.
Department of Workers Claims, Franklin Circuit Court, Division 1, Civil Action No. 13-CI-1467;
Heyman v. Kentucky Public Protection Cabinet, Franklin Circuit Court, Division 2, Civil Action
No. 15-CI-1179.
Furthermore, these allegations of misconduct were not substantiated by the Cabinet’s
investigation, which appears to be as thorough and impartial as possible given Commissioner
Johnson’s refusal to participate. Thus, any concerns that the accused individuals might suffer
scorn, ridicule, and harassment are greatly diminished, if not eliminated. In fact, as the Attorney
General has previously noted, a falsely accused public employee will find vindication in the
disclosure of the very records that declare the claims to be unsubstantiated. See 18-ORD-059. As
a result, the privacy interests of the accused are minimal in this case.
Here, a public employee reported the alleged workplace misconduct of her supervisor,
including sexual harassment and discrimination, and those matters were internally investigated.4
Those investigative records were then heavily redacted. The Cabinet removed all references to the
supervisor, including those references which could provide enough factual context to readily
identify him. However, the Court’s ruling here, and in similar cases previously decided, is that
disputes of this nature arising out of workplace conduct by public employees—on the taxpayer’s
dime during their public employment—must be fully disclosed. Stated another way, the public
has a right to decide for itself whether the public employee’s conduct was inappropriate or illegal
and whether the responsible public officials appropriately supervised, investigated, or disciplined
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4
The Court notes that a public employee aggrieved by an unlawful act in the workplace may file a complaint
with Kentucky’s Commission on Human Rights under KRS 344.200, after which the Commission determines whether
probable cause supports the complainant’s allegations. There is therefore an impartial and external review process
available, yet these matters are routinely handled within the agency, raising concerns of impartiality.
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the persons accused. In this case, because both employees were high level appointees of the
Governor whose actions and responsibilities were very much in the public eye, the public’s right
to know is especially heightened. This public interest outweighs the privacy interests of the
accused, witnesses, and other involved individuals.
Furthermore, the Cabinet’s redactions shield from public scrutiny the names of these high
level appointees of the Governor, and thus, hide significant concerns about the Governor’s efforts
to comply with the mandate of the Kentucky General Assembly to reform this critical area of
public policy.5 As Commissioner of DCBS, Ms. Johnson was the primary public official with
policy responsibility for this area, yet she alleges that she was ignored and bypassed in the
Governor’s efforts to bring reform to the system. In the Court’s judgment, this is exactly the kind
of public policy dispute that demands public scrutiny through the Open Records Act. The
application of the privacy exceptions to shield the Administration’s conduct is wholly
inappropriate.
Simply put, the conduct of public employees in the public workplace, on the taxpayer’s
dime, is a matter of legitimate public interest, and the transparency required by the Open Records
Act is the primary safeguard to ensure public accountability. This strong public interest often
outweighs the minimal privacy interests involved. In fact, this issue is directly addressed in the
Open Records Act, which explicitly provides that all exceptions to public disclosure “shall be
strictly construed, even though such examination may cause inconvenience or embarrassment to
public officials or others.” KRS 61.871. The Court therefore finds that under the circumstances
of this case, the public interest outweighs the minimal privacy interests of the exonerated
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individuals and the witnesses.
5
See House Bill 1, 2019 Ky. Acts, ch. 159.
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However, the Court finds one piece of personal information in the submitted documents
that outweighs the public interest in disclosing said documents. This information includes the
personal health struggles of one of the public employees, referenced on pages 5 and 6 of the
investigative report. Those pages focus on an allegation that the accused party made inappropriate
comments about the physical condition of women in the Cabinet. These comments include
statements about a female employee suffering from a physical disability. The statements reveal
sensitive personal information about that employee, who is not a complaining party or witness,
and the report clearly indicates that this employee, whose identity is unrelated to this dispute, found
such comments upsetting. Furthermore, having reviewed those comments, this Court finds that
they are unlikely to aid the public’s consideration of whether the agency is fairly and efficiently
investigating workplace misconduct. Thus, the Court finds that this individual’s personal privacy
interest outweighs the public’s interest in this case and will order that information related to this
particular employee remain redacted.6
The Open Records Act requires that public agencies be open and transparent in dealing
with allegations of workplace misconduct. The taxpaying public deserves an opportunity to review
these matters and hold these agencies accountable for their investigations. As noted above, the
disclosure of the complaints and investigative materials allows the public to determine whether
these investigations are being handled in an efficient, fair, and effective manner. This not only
ensures that our publicly-funded agencies are efficiently and competently managed, but also
protects the individual state employees who may be subjected to sexual harassment, assault, or
discrimination in the workplace by ensuring that complaints of such misconduct are thoroughly
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6
For clarity, the Court will file a properly redacted version of this page of the Report of Investigation separately
under seal and will provide that page to all counsel upon request.
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and fairly investigated. This public interest outweighs the subjective desire of affected individuals
to remain anonymous.
Rather than conduct this important balancing test, the Cabinet essentially created a
categorical redaction policy for information related to unsubstantiated allegations, including
information well-beyond the scope of the personal privacy exemption. However, only a handful
of categorial exemptions have been approved by our courts—including the names of third-party
citizen reporters, the names of juveniles, protected health information, and personal identifiers
such as social security numbers, home addresses, or public assistance information. See Kentucky
New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 88–89 (Ky. 2013); Courier-Journal and
Lexington H-L Servs., Inc. v. Cabinet for Health and Family Servs., No. 11-CI-141, Opinion and
Order, Dec. 23, 2013, aff’d Cabinet for Health and Family Services v. Courier-Journal, 415
S.W.3d 375 (Ky. App. 2016). If the Cabinet wishes to expand this list, it must present specific
factual support for its privacy claims, and those claims must be reviewed on a case-by-case basis.
In the present case, the Cabinet simply argued that the redacted information, when viewed in the
context of a small department within the Cabinet, could lead to the identification of the accused
and witnesses, information which does not aid the public’s monitoring of the agency, according to
the Cabinet. The Court finds that this strained justification is insufficient to warrant the extensive
categorial exemption employed here.
The Court believes this analysis is required by the Kentucky Supreme Court’s analysis in
Lawson v. Office of Attorney General, 415 S.W.3d 59 (Ky. 2013). In that case, the Kentucky
Supreme Court considered whether the personal privacy exemption covered personal information
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contained within certain law enforcement records. The records consisted of a proffer of evidence
related to Lawson’s involvement in “rigged” highway construction contracts with the state
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Department of Transportation. The Court acknowledged that “mere association with [law
enforcement records] can be embarrassing and stigmatizing, if not worse,” and “even persons
convicted of crimes may retain some privacy interest in the related records.” 415 S.W.3d at 69–
70. However, the Court explained, a substantial countervailing public interest exists: “[W]here an
individual’s dealings with an agency do significantly implicate how the agency is carrying out its
functions or exercising its discretion, we have not hesitated to find that privacy interests must yield
to the public’s right to know what its government is up to.” Id. at 70. In that case, Lawson’s proffer
provided insight into the conduct (or potential misconduct) of two state agencies in a “bidding
conspiracy.” Id. at 71. The Court found that this interest outweighed Lawson’s privacy interests,
thereby warranting disclosure. Similarly, in Kentucky New Era, the Court found 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.” 415 S.W.3d at 86; see also
Cape Productions, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818, 823 (Ky.
2008) (“As a public institution that receives taxpayer dollars, the public certainly has an interest
in the operation and administration of the [public institution].”).
Lastly, the Court notes that the Cabinet’s investigation appears impartial and thorough, and
the results of the investigation have been set forth in a detailed, well-organized, and unbiased
manner. However, reasonable minds may disagree with the conclusions of the Report, and the
Court’s own evaluation of the investigation does not eliminate or reduce the public’s interest in
conducting its own review of these records. For example, while the Cabinet’s Report of
Investigation concludes that Commissioner Johnson’s allegations of a hostile work environment

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are “unsubstantiated,” it also exposes very legitimate questions about the management and
administration of the Cabinet for Health and Family Services, DCBS, and the involvement of the
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Governor’s Office in addressing critical public policy issues of foster care and adoption.
Moreover, it is not surprising that the Report of Investigation found the proof lacking, as
Commissioner Johnson declined to be interviewed. Since the investigators only heard one side
of the story, the conclusions of the Report cannot be viewed as definitive.
Accordingly, this Court finds that the Cabinet improperly withheld the identity of the
accused parties, witnesses, and other involved individuals under the Act’s personal privacy
exemption. The identifying information of these individuals (e.g., job title or work station) was
also improperly withheld. However, to the extent the documents contain certain personal
identifiers (such as private cell phone and home phone numbers, personal email addresses, and
home addresses), such information may be properly redacted. In addition, as explained above, the
personal health information of the former employee referenced at pages 5-6 should be redacted.
II. The Cabinet willfully violated the Open Records Act.
In its Motion for Summary Judgment, the Courier-Journal requests attorney’s fees and
penalties pursuant to KRS 61.882(5). That provision provides,
Any person who prevails against any agency in any action in the courts regarding
a violation of [Kentucky’s Open Records Act] may, upon a finding that the records
were willfully withheld in violation of [Kentucky’s Open Records Act], be awarded
costs, including reasonable attorney’s fees, incurred in connection with the legal
action.
The statute also states that “it shall be within the discretion of the court to award the person an
amount not to exceed twenty-five dollars ($25) for each day that he was denied the right to inspect
or copy said public record.”
Accordingly, “[t]o be entitled to attorneys’ fees, costs, and penalties under KRS 61.882(5),
OPOR : 000017 of 000029
the circuit court must find that the public agency acted ‘willfully’ in denying a ‘person’ access to
requested records under the Open Records Act.” Cabinet for Health and Family Servs. v. Courier-
Page 17 of 29
Journal, Inc., 493 S.W.3d 375, 384 (Ky. App. 2016). However, “[a] public agency’s mere refusal
to furnish records based on a good faith claim of a statutory exemption, which is later determined
to be incorrect, is insufficient to establish a willful violation of the Act.” Id. (quoting Bowling v.
Lexington-Fayette Urban Cnty. Govt’t., 172 S.W.3d 333, 343 (Ky. 2005)) (internal quotation
marks omitted). Instead, “[w]illful action ‘connotes that the agency withheld records without
plausible justification and with conscious disregard of the requester’s rights.’” Id. (quoting City
of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 854 (Ky. 2013)).
However, “[w]here ‘willfulness’ is found, the statute still leaves the imposition of fees,
costs, and/or penalties to the trial court’s discretion.” Id. When determining whether such an award
is appropriate, the court should consider “the extent of the agency’s wrongful withholding of
records; the withholding’s egregiousness; harm to the requester as a result of the wrongful
withholding, including the expense of litigating the matter; and the extent to which the request
could be thought to serve an important public purpose.” Id. (citation omitted). A trial court’s award
of fees, costs, and penalties will be upheld on appeal unless the court abused its discretion by
rendering an award that is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Id. (quoting Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky.2004) (internal quotation
marks omitted).
In the present case, the Courier-Journal’s Motion for Summary Judgment includes a request
for attorney’s fees and statutory penalties, and the parties fully briefed the issue of whether the
Cabinet acted “willfully” under KRS 61.882(5). Having reviewed those arguments, the Court
hereby finds that the Cabinet willfully withheld nonexempt information without plausible
OPOR : 000018 of 000029
justification and in conscious disregard of the rights of the Courier-Journal, as discussed in more
detail below.
Page 18 of 29
A. The Cabinet failed to provide adequate detail in its initial response to the July 5,
2018 request without plausible justification and in conscious disregard of the
Courier-Journal’s rights under the Kentucky Open Records Act.
As an initial matter, the Court notes that there was some debate over whether the Cabinet
was required to respond to the Courier-Journal’s initial request on June 11, 2018. That request
was attached to an email from a Courier-Journal reporter to the Cabinet’s Office of Public Affairs.
See Resp.’s Mot. Summ. J. Ex. 2. In the email, the reporter asked the Cabinet to verify Ms.
Johnson’s resignation and “provide any other information if available such as the reason for the
resignation or any comment from the cabinet. Attached is a records request, if necessary.” Id. The
Cabinet interpreted this to mean it could respond to the questions stated in the email or respond to
the Open Records Act request. The Cabinet chose to respond only to the email’s questions. Id.
Ex. 3. This tenuous explanation was not provided to the OAG. As a result, the OAG found that
the Cabinet violated KRS 61.880(1), which requires that an agency respond to the requesting party
within three business days. However, the Court acknowledges that under KRS 61.872(2) and 09-
ORD-190, a public agency need only accept Open Record Act requests that are hand delivered,
mailed, or faxed. Accordingly, the Court will not find that the Cabinet willfully violated the Act
when it failed to respond to the June 11, 2018 request.
Nevertheless, the Court finds that the Cabinet willfully violated the Act when it failed to
provide sufficient detail in its response to the July 5, 2018 request. The Cabinet timely responded
to this second request, but merely stated that the requested documents “are not readily available”
and explained that the Office of Legal Services needed three more days to review the records “for
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compliance with Kentucky open records laws and make a definitive statement on redactions, if
any.” Pet.’s Mot. Summ. J. Ex. 3. However, past OAG decisions have clarified that the process
Page 19 of 29
of reviewing and redacting records “is an ordinary part of fulfilling an open records request” and,
without more, is insufficient to justify an additional delay. See 15-ORD-029; 16-ORD-206; 10-
ORD-138; 14-ORD-047; 17-ORD-082. Furthermore, the use of similar “boilerplate language”
has been found to violate KRS 61.872(5), which requires that a “detailed explanation” be provided
for any delay. See 11-ORD-135; 15-ORD-143; 05-ORD-134; 07-ORD-123; 10-ORD-123; 10-
ORD-080; 12-ORD-043; 16-ORD-056; 17-ORD-192; 17-ORD-224. The Court finds that the
Cabinet ignored these well-established principles in its initial answer to the July 5, 2018 request,
thereby willfully violating the Act.
B. The Cabinet refused to provide unredacted records to the OAG for in camera
review without plausible justification and in conscious disregard of the Courier-
Journal’s rights under the Kentucky Open Records Act.
Under KRS 61.880(2)(a), the OAG may review a public agency’s denial of an Open
Records Act request upon appeal of the complaining party. The statute also authorizes the OAG
to request additional documentation to substantiate the agency’s position. Specifically, KRS
61.880(2)(c) states, “The burden of proof in sustaining the action shall rest with the agency, and
the Attorney General may request additional documentation from the agency for substantiation.
The Attorney General may also request a copy of the records involved but they shall not be
disclosed.” See also KRS 61.846 (“In arriving at the decision, the Attorney General may request
additional documentation from the agency.”).
In refusing to comply with the OAG’s document request, the Cabinet relied on this Court’s
previous ruling in Finance and Administration Cabinet v. Kentucky Public Radio, Civil Action
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No. 18-CI-335. In that case, the Court held that compliance with an OAG request for documents
is not mandatory under KRS 61.880. However, as the Court explained in that Opinion & Order,
Page 20 of 29
[I]f the OAG requests the documents “for substantiation’ as contemplated by KRS
61.880 and the agency refuses to turn over such documents, the OAG properly may
find that the agency failed to meet its burden. Therefore, because the withholding
agency bears the burden of proof in an Open Records Act appeal to the OAG, this
Court agrees that refusal to comply with the OAG’s request for documents
authorizes the OAG to rule against the agency, absent a clear error of law. Simply
put, if a public agency rejects a reasonable request for an in camera review by the
OAG under KRS 61.880, it assumes the risk that the OAG will rule against it, and
that the Court will sustain that holding by the OAG and impose costs and attorney’s
fees under KRS 61.882.
Op. & Order 6–7. In other words, while it may not be mandatory to comply with an OAG request
for documents, the failure to comply with a reasonable request effectively short-circuits the OAG’s
statutory authority to resolve the dispute on the merits. In such cases, the agency should bear the
risk of loss for the attorneys fees that result from litigation it initiates if it does not prevail on its
legal claims.
Under such circumstances, an award of attorney’s fees and statutory penalties is often
warranted. For example, in Cabinet for Health and Family Services v. Todd County Standard,
Inc., 488 S.W.3d 1 (Ky. App. 2015), the agency denied the existence of certain records requested
by the newspaper-defendant, and then refused to answer the OAG’s written questions related to
those records. The Court of Appeals found fault with the state agency’s refusal to answer the
OAG’s questions, explaining, “By refusing to respond to the Attorney General’s questions, the
Cabinet certainly frustrated the Attorney General’s statutory review under KRS 61.880 and also
the timely release of records under the ORA.” Id. at 8. The Court went on to explain that “[t]he
Cabinet cannot benefit from intentionally frustrating the Attorney General’s review of an open
records request; such result would subvert the General Assembly’s intent behind providing review
OPOR : 000021 of 000029
by the Attorney General under KRS 61.880(5).” Id.
Essentially, by declining to produce the documents to the OAG, the agency deprives the
requester of the right to present its case to the OAG and deprives the OAG of its statutory authority
Page 21 of 29
to consider the merits of the matter. As a result, the requester is forced to litigate the case before
the circuit court and incur all of the expenses and costs associated with that litigation. Inevitably,
this process also frustrates the timely release of non-exempt records. On a larger scale, this practice
also discourages citizens, especially those unable to incur the heavy expenses of litigation, from
exercising their rights under the Act.
Thus, in this case, the Court agrees that the Cabinet has intentionally subverted the
authority of the OAG (and the rights of the newspaper) by initiating litigation in circuit court, and,
as a result, the Courier-Journal has incurred significant legal defense costs and expenses. The
OAG’s request for unredacted documents was reasonable, particularly considering the extensive
redactions at issue. The Cabinet’s refusal to comply with that reasonable request served only one
purpose: to deny the Courier-Journal its right to an efficient determination by the OAG, thereby
depriving the OAG of its statutory authority and forcing the matter to litigation in this Court.
In this case, as in the previous cases involving nearly identical issues, it was clearly within
the public’s interest to inspect the records at issue and determine “whether the public servants are
indeed serving the public.” Kentucky Bd. of Exam’rs. of Psychologists v. Courier Journal &
Louisville Times Co., 826 S.W.2d 324, 328 (Ky.1992). By denying the Courier-Journal’s request
and refusing to provide the documents to the OAG, without plausible justification, the Cabinet
obstructed the stated goals of the Act for transparency and expedited resolution of such disputes.
As a result, the rights of the Courier-Journal—to obtain the requested documents and to efficiently
challenge the Cabinet’s withholding of those documents—were abruptly cut off, without plausible
justification. More significantly, the requested was forced to incur substantial legal defense costs
OPOR : 000022 of 000029
in order to vindicate its rights under the Act. Under such circumstances, failure to award
Page 22 of 29
attorney’s fees would effectively penalize the prevailing party for its successful efforts to secure
compliance with the Act.
C. The Cabinet redacted non-exempt information without plausible justification and
in conscious disregard of the Courier-Journal’s rights under the Kentucky Open
Records Act.
In the present case, the Cabinet attempts to justify its redactions by citing primarily to
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013), as well as the OAG’s
response to an Open Records Act request in 2017. As the Court explained above, the OAG’s
response letter is irrelevant to this case. It provides no factual detail and is in no way binding or
persuasive to this Court. Accordingly, the Cabinet’s reliance on that document was without
plausible justification.
More importantly, however, the Cabinet’s reliance on Kentucky New Era was wholly
unjustified. As explained above, that case is easily distinguishable from the current case, as it
involved the extremely personal information (home addresses, social security numbers, etc.) of
private citizens, whereas this matter involves the identities (i.e., names and job titles) of public
employees. In fact, the Kentucky New Era Court permitted the disclosure of names and other
identifying information after concluding that the public’s interest in agency monitoring
outweighed the privacy interests of the victims, suspects, and witnesses.
Nevertheless, the Cabinet relied heavily on the following quote: “The individual’s interest
becomes stronger with regard to personal information the dissemination of which could subject
him or her to adverse repercussions. Such repercussions can include embarrassment, stigma,
OPOR : 000023 of 000029
reprisal, all the way to threats of physical harm.” 415 S.W.3d at 83 (citing Dept. of State v. Ray,
502 U.S. 164, 177 n.12 (1991)). However, when read in context, that statement is merely one
Page 23 of 29
citation in the Court’s thorough summary of the law on privacy interests. Thus, while it provides
some legal background for the reader, it was not the basis for that Court’s decision. In fact, as
stated above, that Court carefully balanced the interests involved and held that the disclosure of
the information—which included the names and personal information of private individuals—was
warranted.
In the present suit, the personal privacy interests of public employees are noticeably
reduced but are balanced against similar public interests (i.e., agency monitoring and public
accountability). In other words, the names of private citizens were disclosed to promote the
public’s interest in monitoring the police department in Kentucky New Era, and it is unreasonable
to rely on that same case to argue that the names of public employees should be redacted under
similar circumstances. In fact, this very situation is explicitly addressed in the Open Records Act,
which provides that the personal privacy exception “shall be strictly construed, even though such
examination may cause inconvenience or embarrassment to public officials or others.” KRS
61.871.
This analysis is well-supported by a long line of persuasive decisions by the OAG,7 as well
as controlling case law. For example, in Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001) the
Court of Appeals considered whether the Act’s personal privacy exemption covered a complaint
of misconduct committed by a police officer. The Court of Appeals noted that the complaint
presented “a matter of unique public interest,” as it alleged that this officer neglected his duty to
the public by having an inappropriate relationship with another office while on duty. Id. at 599. OPOR : 000024 of 000029
7
A small sampling of relevant OAG decisions include the following: 2-ORD-055; 07-ORD-241; 04-ORD-
031; 02-ORD-231; 02-ORD-75; 99-ORD-105; 96-ORD-177; 92-ORD-1515; OAG 92-34; OAG 91–198; OAG 91–
41; OAG 88–25; OAG 87–64; OAG 78–133.
Page 24 of 29
Thus, the Court explained, the public had a “legitimate interest” in learning more about the
underlying allegations and disciplinary action. Id.
The Palmer and OAG decisions expressly hold that any potential negative attention that
public employees might receive is outweighed by the public’s interest in ensuring that those
employees, whose salaries are funded by tax payer dollars, are working for the benefit of the public
and that any misconduct is effectively investigated and efficiently resolved by the publicly-funded
agency. In other words, when the alleged misconduct was committed by a public employee while
working at or representing a public agency, the public interest is likely to outweigh the minimal
privacy interests involved. This principle is well-established. See, e.g., Lawson v. Office of the
Attorney General, 415 S.W.3d 59, 70–71 (Ky. 2013) (explaining that disclosure of private
information is often warranted when it sheds light on a public agency’s performance and providing
numerous citations to support this proposition).
Given the clear guidance provided by the OAG and our Kentucky courts, it was
unreasonable for the Cabinet to rely on Kentucky New Era, which involves the information of
private citizens, and the 2017 OAG response letter, which has no precedential or persuasive value.
Stated another way, it was unreasonable for the Cabinet to disregard clearly applicable and
persuasive precedent—namely, Palmer and a plethora of OAG decisions—in favor of Kentucky
New Era, which provides little to no support for the Cabinet’s arguments. Accordingly, this Court
finds that the Cabinet redacted the information at issue without plausible justification and in
conscious disregard of the Courier-Journal’s rights to view such information under the Kentucky
Open Records Act. As a result, the Courier-Journal was forced to defend its request before the
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OAG and then, at the Cabinet’s insistence, in this Court. In doing so, the newspaper incurred
significant expenses and costs, and the litigation inevitably delayed compliance.
Page 25 of 29
D. An award of attorney’s fees is appropriate in these circumstances.
As noted above, upon finding that a state agency willfully withheld requested information,
a court may award fees and penalties, in its discretion. Factors the Court should consider in
reaching its decision include, among other things, the egregiousness of the offense and the harm
suffered by the requesting party, including fees and costs. In this case, the Cabinet’s extensive
redactions were clearly unsupported by case law and persuasive OAG decisions, and its refusal to
provide documents to the OAG for review was equally unjustified. Under these facts, this Court
finds that an award of attorney fees and penalties is necessary and appropriate to vindicate the
statutory requirements of the Kentucky Open Records Act.
To deny an award of attorney’s fees and penalties in these circumstances would be to
reward a state agency for obstructing compliance with the Act. Furthermore, without the threat of
fees and penalties, agencies might feel compelled to initiate legal proceedings to further delay
compliance. For example, if this Court refuses to award fees to the Courier-Journal under the facts
of this case, it essentially condones the agency’s willful refusal to submit documents to the OAG
for an in camera review, despite the Act’s clear mandate to do so. This, in turn, robs the requesting
party of its statutory right to present its case to the OAG for a timely and cost-effective decision.
Instead, the requester who seeks to exercise his rights under the Act is punished with the heavy
costs, burdens, and delays inherent in defending a lawsuit. This inevitably discourages requesting
parties from challenging an agency’s decision to withhold or redact documents, and in some cases
may discourage the initial request entirely. As this Court previously explained in Lexington
Herald-Leader v. Cabinet for Health and Family Services, No. 09-CI-1742:

OPOR : 000026 of 000029
The intent of the Kentucky Open Records Act to provide attorneys fees for willful
violation is similar to the provision for attorney’s fees and costs in the Federal
Freedom of Information Act.8 Such provision in FOIA for attorney’s fees “had
Page 26 of 29
a . . . purpose to remove the incentive for administrative resistance to disclosure

requests based not on the merits of exemption claims, but on the knowledge that
many FOIA plaintiffs do not have the financial resources or economic incentives
to pursue their requests through expensive litigation.”
Opinion and Order, Sept. 29, 2010 (internal citations omitted), affirmed, Cabinet for Health and Family
Services v. Lexington H-L Services, Inc., 382 S.W.3d 875 (Ky. App. 2012).
Clearly, this would serve only to defeat the purposes of the Act, which “seeks to ensure the
free and open examination of public records.” Cape Publications, Inc. v. University of Louisville
Foundation, Inc., 260 S.W.3d 818, 821 (Ky. 2008). Thus, where a state agency willfully refuses
to comply with the Open Records Act, the costs incurred as a result of that refusal must be borne
by the agency. Accordingly, under the circumstances of the present case, an award of attorney’s
fees and statutory penalties is appropriate.
While both parties fully briefed the issue of willfulness, the appropriate documentation
(e.g., affidavit of reasonable fees) has not yet been submitted in support of that request.
Accordingly, the Court will reserve issuing an award of fees and penalties until the Courier-Journal
submits a formal motion and provides the Court with the necessary documentation.
CONCLUSION
For the reasons set forth above, the Court GRANTS the Courier-Journal’s Motion for
Summary Judgment and DENIES the Cabinet’s Motion for Summary Judgment. Accordingly,
this Court AFFIRMS the decision of the Attorney General in 18-ORD-179 and ORDERS that
unredacted copies of the records be released to the Courier-Journal within ten (10) days of the
8
“In 1974, Congress amended the Freedom of Information Act (5 U.S.C.A. § 552) when it realized that only
OPOR : 000027 of 000029
financially ‘well-heeled’ plaintiffs would be able to afford the expense of bringing suits under the Act, since, almost
by definition, an action under FOIA seeks documents or other materials that have little intrinsic value, rather than
money damages out of which an attorney could take a contingent fee. Thus, consistent with the important national
policy favoring disclosure of government information, Congress included in the 1974 amendments the provision
codified at 5 U.S.C.A. § 552(a)(4)(E), which provides that a complainant who has ‘substantially prevailed’ in a FOIA
suit may receive reasonable attorney's fees and other litigation costs reasonably incurred.” 179 A.L.R. Fed 1 § 2(a).
Page 27 of 29
entry of this Order, with the following information disclosed: names of complainants, accused
parties, witnesses, and other involved individuals; job titles; workplace locations; and other
identifying information (with the exception of personal home or cell phone numbers, personal
email addresses, and home addresses, which may be redacted). Lastly, the Cabinet shall redact
the personal health information of the female employee referenced above, as indicated by the
redactions made by the Court, and filed separately under seal.
In addition, the Court finds that the Cabinet willfully withheld non-exempt information
without plausible justification and in intentional disregard of the rights of the Courier-Journal.
Accordingly, the Courier-Journal shall have seven (7) days from the entry of this Order to submit
a request for attorneys’ fees and statutory penalties, supported by affidavit and accurate,
contemporaneous time records. The Cabinet shall have seven (7) days thereafter to file its
response, and to request a hearing on any objections it may have.
This is not a final order, subject to compliance with the required production of documents
and any motion for attorneys’ fees.
SO ORDERED this 17th day of April, 2019.
______________________________
PHILLIP J. SHEPHERD, JUDGE
Franklin Circuit Court, Division I
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Page 28 of 29
DISTRIBUTION:
Hon. Michael P. Abate

Hon. Jon. L. Fleischaker
Kaplan Johnson Abate & Bird LLP
710 West Main St., 4th Floor
Louisville, KY 40202
Hon. David T. Lovely

Hon. Johann Herklotz
Cabinet for Health and Family Services
275 East Main Street, 5W-B
Frankfort, KY 406021-0001
Hon. Andy Beshear, Attorney General

Commonwealth of Kentucky
Office of Attorney General
700 Capitol Avenue, Suite 118
Frankfort, KY 40601
OPOR : 000029 of 000029
Page 29 of 29

Cabinet For Health and Family Services v. The Courier-Journal - Franklin Circuit Court - NO. 18-CI-1036

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Entered 18-CI-01036 04/17/2019 Amy Feldman, Franklin Circuit Clerk

COMMONWEALTH OF KENTUCKY, PLAINTIFF

v. OPINION & ORDER

THE COURIER-JOURNAL, INC. DEFENDANT

appearing on behalf of Defendant The Courier-Journal, Inc. (“Courier-Journal”) and David T.

Judgment, for the reasons set forth below.

Cabinet’s Department of Community Based Services (“DCBS”). In her letter of resignation,

incredibly disappointing.” Id.

The circumstances of Commissioner Johnson’s resignation were detailed further in a

to be unsubstantiated, as well as surrounding information that could reasonably lead to

the Act’s personal privacy exemption. Id. Ex. 4.

and both parties now move for summary judgment.2

misconduct, which concern a handful of inappropriate comments made by a supervisor to

Commissioner Johnson. These comments are detailed in Commissioner Johnson’s resignation

letter, as well as her demand letter.

environment. Because Commissioner Johnson refused to participate, the internal investigation

who allegedly made the offensive statements.

gave rise to most of the redactions made by the Cabinet.

As the unredacted documents demonstrate, however, Commissioner Johnson’s primary

in favor of advisors from another state.

counsel, the Court now rules as follows.

Louisville Times Co., 826 S.W.2d 324, 327–28 (Ky. 1992).

personal privacy exemption.

unwarranted invasion of personal privacy.” KRS 61.878(1)(a).

redacted information to be released. However, these matters must be considered on a case-by-case

of the complainants, accused parties, and witnesses.3

repercussions,’” such as embarrassment or physical harm. Resp.’s Mot. Summ. J. 5 (quoting

conducts investigations of alleged harassment.” Id.

Supreme Court affirmed the lower court’s decision.

home addresses or personal telephone numbers) of public employees, including accused

investigation—specifically, whether it was influenced by favoritism—the identities of the public

officials and employees involved are clearly relevant.

involving allegations of workplace misconduct in a public agency involving public employees

personal or political favoritism. If there is a persistent problem with unsubstantiated allegations

the personnel management practices and efficiency of the public agency.

Furthermore, these allegations of misconduct were not substantiated by the Cabinet’s

investigation, which appears to be as thorough and impartial as possible given Commissioner

accused, witnesses, and other involved individuals.

application of the privacy exceptions to shield the Administration’s conduct is wholly

individuals and the witnesses.

particular employee remain redacted.6

categorical redaction policy for information related to unsubstantiated allegations, including

categorial exemption employed here.

in the operation and administration of the [public institution].”).

Investigation concludes that Commissioner Johnson’s allegations of a hostile work environment

of the story, the conclusions of the Report cannot be viewed as definitive.

II. The Cabinet willfully violated the Open Records Act.

penalties pursuant to KRS 61.882(5). That provision provides,

or copy said public record.”

rendering an award that is “arbitrary, unreasonable, unfair, or unsupported by sound legal

2018 request without plausible justification and in conscious disregard of the

Courier-Journal’s rights under the Kentucky Open Records Act.

when it failed to respond to the June 11, 2018 request.

ORD-138; 14-ORD-047; 17-ORD-082. Furthermore, the use of similar “boilerplate language”

thereby willfully violating the Act.

review without plausible justification and in conscious disregard of the Courier-

Journal’s rights under the Kentucky Open Records Act.

to request additional documentation to substantiate the agency’s position. Specifically, KRS

additional documentation from the agency.”).

by the Attorney General under KRS 61.880(5).” Id.

exercising their rights under the Act.

compliance with the Act.

C. The Cabinet redacted non-exempt information without plausible justification and