05 Sum Code: Cl

Rev. 9-14 Case 18-Cl-00422
Court: CIRCUIT

County: FRANKLIN

Commonwealth of Kentucky
Court of Justice Courts.l<y.gov

CR 4.02; Cr Official Form 1 CIVIL SUMMONS

 

 

 

 

Planfi?, KENTUCKY LABOR CABINET VS. KENTUCKY INC., Defendant

TO: MICHAEL SKOLER
619 S. FOURTH STREET
LOUISVILLE, KY 40202

Memo: Related party is KENTUCKY PUBLIC RADIO, INC.

The Commonwealth of Kentucky to Defendant;
KENTUCKY PUBLIC RADIO, INC.

You are hereby noti?ed that a legal action has been filed against you in this Court demanding relief as shown on
the document delivered to you with this Summons. Unless a written defense is made by you or by an attorney

on your behalf within twenty (20) days following the day this paper is delivered to you, judgment by default may be
taken against you forthe relief demanded in the attached complaint.

The name(s) and the party or parties demanding relief against you or his/her (their) attorney(s) are shown on the
document deiivered to you with this Summons. 

Isl Amy Feldman, Franklin Circuit Clerk
Date: 04/18/2018

 

Proof of Service 7
This Summons was:

Served by delivering a tr 2

., 

Not Served because:

Date: kt? 2k g'mm

  

omplaint (or other initiating document)

- To:

 

 

 

Served By
C. 6 
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Presiding Judge: HON. PHILLIP J. SHEPHERD {548260)

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Summons iD: @00000203212_ 
18431-00422 Return to Filer for Service

KENTUCKY LABOR CABINET VS. KENTUCKY PUBLIC RADIO, INC. I 
Page 1 0H 6 I 63 .

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18~Cl~00422 Amy Feldman, Franklin DOCUMENT
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30551 02-12
COMMONWEALTH OF KENTUCKY
FRANKLIN CIRCUIT COURT
DIVISION 
CIVIL ACTION NO. 
COMMONWEALTH OF KENTUCKY, PLAINTIFF APPELLANT,
KENTUCKY LABOR CABINET,
V. COMPLAINT AND NOTICE OF APPEAL
KENTUCKY PUBLIC RADIO, INC. d/b/a
KENTUCKY CENTER FOR INVESTIGATIVE

REPORTING, DEFENDANT APPELLEE.

Serve: Michael Skoler
619 S. Fourth Street
Louisville, Kentucky 40202

The Commonwealth of Kentucky, Kentucky Labor Cabinet (the ?Cabinet?), by counsel,

and for its Complaint and Notice of Appeal, states as follows:
INTRODUCTION

(1) The Cabinet brings this action pursuant to KRS and 61.882 as a
complaint and appeal from an Open Records Act decision of the Of?ce of Attorney General Andy
Beshear (the Speci?cally, the Cabinet appeals the determination in 9
that the Cabinet violated the Open Records Act ?by withholding the name of a Cabinet employee
whose alleged sexual harassment of a co-worker was not substantiated upon inVestigation.?

(2) - The question on appeal in this matter is straight?forward: Does the personal privacy
exemption to the Open Records Act apply to the name of an individual accused of sexual
harassment when the state agency?s investigation into the accusation results in an non~

substantiation of the claim? Stated another way, does the Open Records Act require a state agency

18-01-00422 04/18/2018 Amy Feldman, Franklin Circuit Clerk

Presiding Judge: HON. PHILLIP J. SHEPHERD (648260)

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to disclose the name of an individual against whom an unproven accusation of harassment or
similar misconduct has been made? The Cabinet believes this issue is too important to leave
resolved by an OAG opinion that not only misses the mark on the purpose underlying the Open
Records Act but also contradicts the own response to a similar Open Records Act request.
Accordingly, the Cabinet has no option but to seek de novo review, and asks the Court to reverse
the OAG.

PARTIES

(3) The Appellant in this matter is the Kentucky Labor Cabinet, an administrative
agency of the Commonwealth of Kentucky established under KRS Chapters 12 and 336. The
Cabinet is a ?public agency? within the meaning of KRS 6l.870(1) and has a principal place of
business located at 1047 US. Highway 127 South, Suite 4, Frankfort, Kentucky, 40601.

(4) The Appellee in this matter is Kentucky Public Radio, Inc., doing business as the
Kentucky Center for Investigative Reporting (the The KCIR has a principal place of
business located at 619 S. ouith Street, Louisville, Kentucky, 40202. According to the Secretary
of State?s records, the registered agent for the KCIR is Michael Skoler.

(5) Pursuant to KRS 61.846, the OAG is the administrative agency of the
Commonwealth of Kentucky authorized to review complaints regarding suspected violations of
the Open Records Act by a public agency pursuant to KRS 61.846. The OAG is not a party to this
action.? See KRS 

JURISDICTION AND VENUE

(6) This Court has proper subject-matter jurisdiction pursuant to KRS The

Court has personal jurisdiction over the KCIR due to its making an Open Records Act request in

the Commonwealth of Kentucky.

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7 (7) Venue is proper in this Court pursuant to KRS 61 .882(1). The Cabinet is located
at 1047 U.S. Highway 127 South in Frankfort, Kentucky. Any records at issue are maintained by
the Cabinet in its Frankfort, Kentucky, headquarters.

FACTS

(8) On or about November 1, 2017, the KCTR submitted a written Open Records Act
request to the Cabinet through which it sought the production of the following documents:

All complaints made by state employees to your agency, or an agency

under your jurisdiction, related to sexual harassment, sexual
discrimination or sexual assault since 1/1/2012

- Any/all summaries of internal investigations and the resolution of those

investigations

An y/all records of settlements related to these complaints

- Reports detailing any/all disciplinary action taken in response to the

complaints, including but not limited to actions against the complainant
and the subject of the complaint.
[Ex. 

(9) That same day, the KCIR submitted a similar Open Records Act request to the
OAG. [Ex. 

(10) Five days later, on November 6, 2017, Laura Tipton, an Assistant Attorney General
in the OAG, responded to the request on behalf of Attorney General Beshear via letter and
six (6) pages of accompanying, redacted documents. [Ex. 

(11) In the accompanying documents, the OAG produced documents evidencing a series
of events that occurred in October 2013. [1d at unnumbered pp. The accompanying
documents included the redaction of the names of both an alleged victim of harassment
and an alleged harasser. 

(12) Justifying these redactions, Ms. Tipton noted in her letter that under KRS

and Lawson v. O?ice of Attorney General, 415 59 (Ky. 2013), ?the

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complainant is the victim of alleged harassment, warranting the redaction of the complainant?s
name.? [Id at unnumbered p. Ms. Tipton then continued: ?Further, disclosing the name of the
complainee reveals nothing to the public about how the OAG handles complaints and conducts
investigations of alleged harassment. Accordingly, under the circumstances, we ?nd that the
privacy interests of the individual outweigh the public?s interest in disclosure of the complainee?s
name.? 

(13) On November 21, 2017, the Cabinet, by counsel, submitted an initial letter setting
forth the Cabinet?s response to the Open Records Act request. [Ex. With that letter,
the Cabinet provided documents that the Cabinet believed to be responsive to the request.
I

(14) As noted in the November 21, 2017 letter, the Cabinet redacted certain portions of
those documents pursuant to the exemptions enumerated under the Open Records Act, particularly
?information of a personal nature,? as described in KRS of ?any person who
complained of harassment, any person alleged to have harassed a co?worker, and/or the immediate
supervisor(s) for each.? [Id at 

(15) On December 5, 2017, the Cabinet produced a second Open Records Act response
letter to the [Ex. Along with that letter, the Cabinet produced additional documents
that it believed to be responsive to the initial request. As it did before, the
Cabinet redacted certain portions of those new documents it believed to constitute ?information of
a personal nature,? as stated in KRS 61 This time, the Cabinet redacted personal
information related to ?any person who complained of harassment and any person who was alleged

to have harassed the complaining party where the personnel at the Of?ce of General

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Administration and Program Support for Shared Services (GAPS) determined that the claim could
not be substantiated.? [Ex. F, p. 
(16) One month later, on January 10, 2018, the Cabinet received notice of the 

appeal to the OAG. In their appeal, the KCIR took issue with the Cabinet?s redaction of

the names of both ?the accused and accusers,? as well as information about their job titles and

salaries. [Id at unnumbered p. 

(l7) Shortly after receiving the appeal, the Cabinet reached out to Ms. Kate
Howard, who ?led the appeal on behalf, and sought a resolution of this matter prior to the
original response deadline of Tuesday, January 16, 2018, set by the OAG. After discussing the
matter with Ms. Howard, and considering the matter further, counsel for the Cabinet, by e-mail
dated January 16, 2018, provided Ms. Howard with a revised production. [Ex. 

(18) With that communication, counsel for the Cabinet attached two PDF documents
that were nearly identical to the November 21, 2017 and December 5, 2017 productions but
included certain information previously redacted in those productions. [Exs. J, 

(19) In particular, the documents produced in Exhibit included the following:

.The name, job title, and signature of the Cabinet employee accused of sexual
harassment, which the Cabinet deemed credible, previously redacted on pages
1-6, 8-12, and 33?43; 

The name, job title, and signature of the supervisors of the Cabinet employee
accused of sexual harassment, which the Cabinet deemed credible, previously
redacted on pages 1-6, 8?12, and 33?43; .

a Draft reports produced by the Department of Workplace Standards, which were
included by the employee accused of sexual harassment, previously redacted
on pages 12-32;

0 Handwritten notes compiled by Cabinet of?cials during the course of the
investigation into the allegations of sexual harassment speci?c to this ?le
previously redacted on pages 33-40, 42-47, and 49-50; and

a Typed notes compiled by Cabinet of?cials during the course of the
investigation into the allegations of sexual harassment speci?c to this ?le
previously redacted on pages 41 and 48.

18-Cl-00422 04/18/2018 Amy Feldman, Franklin Circuit Clerk

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(20) The documents produced in Exhibit included the following:

The name and job title of the supervisors of the Cabinet employee accused of
sexual harassment, which the Cabinet could not substantiate, and of Cabinet
employees interviewed previously redacted on pages 5, l7, and 18; and

0 The job title and salary of the Cabinet employee accused of sexual harassment,
which the Cabinet could not substantiate, previously redacted on pages 4, 10,
11, and 17.

(21) On January 18, 2018, counsel for the Cabinet submitted a letter to the OAG
responding to the appeal. [Ex. In addition to laying out the timeline of events leading
up to that point, the letter set forth the Cabinet?s argument for why the Open Records Act permitted
the Cabinet to redact personal, private information such as names, addresses, personnel numbers,
Social Security numbers, employee ID numbers, and e-mail addresses of (1) any employee who
complained of harassment and (2) any employee who was accused of harassment in a case that the
Cabinet could not substantiate. [See generally id].

(22) Less than two weeks later, on January 31, 2018, the OAG sent a follow-up letter to
counsel for the Cabinet, [Ex. asking the Cabinet to do the following:

1. Please identify those portions of the responsive records (?Attachments

and that continue to be withheld/redacted upon the Cabinet?s claim of

attorney?client privilege and/or work~product doctrine. Although your letter of

January 18, 2018, states that does not appear to take issue with? these

redactions, and that ?the Cabinet" sees no reason to offer any further discussion of

these redactions,? it will facilitate our review for you to speci?cally identify which

portions of the record have been redacted pursuant to these exceptions. You may

graphically identify these portions on the unredacted records that you will provide,

or in some other manner that you believe will best aid in our understanding of which

portions of the records were redacted under these exceptions.

2. As in #1 above, please identify those portions of the records that continue

to be withheld/redacted pursuant to KRS 61 as you referenced on page 2
of your letter of January 18, 2018.

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[Id at The OAG further sent the Cabinet a ?Noti?cation of Extension of Time for Issuance
of Attorney General?s Decision in Open Records Appeal,? through which the OAG informed the
Cabinet that it could expect a decision on or before March 21, 2018. [Ex. 

(23) In response to the supplemental request, counsel for the Cabinet submitted
a letter to the OAG dated February 15, 2018. [Ex. In that letter, the Cabinet explained that no
documents continued to be withheld pursuant to KRS [id at that any
information redacted under KRS was being produced again with highlighted text, [id
at and that it would not disclose any information covered by the attorney?client privilege and/or
work-product doctrine because it believed such disclosure to constitute a waiver of those
privileges, 

(24) Nearly four months after the date of the initial response to the Open Records
Act request it received from the KCIR, Ms. Howard contacted the OAG, by e?mail dated Friday,
March 2, 2018, to follow up on the response. [Ex. 

(25) The following Monday, March 5, 2018, the OAG responded, by e-mail, [Ex. 
quoting the following passage from 

This is not to suggest that the complaining employees have no cognizable
privacy interest in their personal information in highly sensitive cases. Those
?portions of the records that contain personally identi?able information implicating
signi?cant privacy interests but unrelated to the specific allegations [may] be
withheld on the basis of KRS Pursuant to KRS
any public record contains material which is not excepted under
this section, the public agency shall separate the excepted and make the non-
excepted material available for examination.? Thus, as to those complainants, the
Department may redact ?names, occupation, and other speci?c identifying
information or non-work?related statements,? provided there is a strong interest in
personal privacy and if such redaction does not ?obscure the general nature of
the complaint [or] make it unduly dif?cult to assess the appropriateness of the

agency?s response.? 15-ORD-163.

[Id at 56 (footnote omitted)].

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(26) Later that morning, Ms. Howard, by e-mail, responded to the e-mail,
stating: ?Thanks - that is about complaining employees, though. We are talking about the person
accused in your redactions.? [Ex 

(27) On March 21, 2018, the OAG issued its opinion in [Ex. In

response to the Cabinet?s position that KRS permits the redaction of a public

employee?s identity who is accused of harassment but against whom such claims could not be 

substantiated, the OAG disagreed, writing:

[Wle have generally held that the privacy interest of public employees who have

been disciplined for, or exonerated of charges of, misconduct in the course of their

employment is outweighed by the public interest in monitoring agency action. This

applies regardless of whether the complaints made are substantiated and
disciplinary action imposed, or unsubstantiated and no action taken.
[Id at 

(28) In deciding against the Cabinet, the OAG contradicted its own articulated positions
in response to two requests from the KCIR.

(29) The application of one standard to itself and another, contradictory standard
to an Executive Branch agency under the supervision of the Governor of the Commonwealth of
Kentucky undermines the credibility and validity of the opinion in and raises
substantial questions about the ability to render impartial decisions concerning the
application of the Open Records Act.

(30) The Cabinet?s stated position; namely, that the personal information exemption to
the Open Records Act precludes the disclosure of names of individuals who have been accused of,

but ultimately vindicated of, committing sexual harassment, coincides legally with the 

stated position articulated in their November 6, 2017 letter to the KCTR.

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(31) For the foregoing reasons, as well as those stated in the Cabinet?s January 18, 2018
and February 15, 2018 letters to the OAG, the Cabinet acted consistently with the Open Records
Act in withholding the identities of any employee who was accused of sexual harassment but
against whom such claims could not be substantiated.

(32) Under KRS the Court must conduct a de novo review of this matter to
determine whether the Cabinet complied with the Open Records Act. That is, the Court must
decide on a clean slate?without deference to the decisionm?Whether the names of
individuals accused of sexual harassment but ultimately vindicated against such claims#are
exempt from disclosure under the Open Records Act.

PRAYER FOR JUDGMENT

WHEREFORE, Plaintiff Appellant, Commonwealth of Kentucky, Kentucky Labor
Cabinet, prays:

(1) For the Court to enter a brie?ng schedule to facilitate its review of this matter;

(2) For the Court to review this matter de new with no deference given to the Attorney
General?s decision against the Cabinet;

(3) For the Court to enter a judgment reversing the Attorney General?s decision and
concluding that the Labor Cabinet complied with the Open Records Act in all respects; and

(4) For all other proper relief to which the Commonwealth of Kentucky, Kentucky

Labor Cabinet may be entitled.

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Respectfully submitted,

/s/Michael G. Swansburg. Jr.

Michael G. Swansburg, Jr. 93900)
Megan Kinsolving 94387)
Of?ce of General Counsel

Kentucky Labor Cabinet

1047 U.S. Highway 127 South, Suite 4
rankfort, Kentucky 40601

Phone: (502) 564-6070

Fax: (502) 564?5484



Counsel for Plainti? Appellant,
Commomvealth of Kentucky,
Kentucky Labor Cabinet

Dated this 18th day of April 2018

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Amy Feldman, Franklin Circuit Clerk

Presiding Judge: HON. PHILLIP J. SHEPHERD (648260)

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