The Kentucky Labor Cabinet argued in Franklin Circuit Court Wednesday that protecting the identity of employees accused of — but not proven to have committed — sexual harassment is a “common sense” decision.
When the Labor Cabinet provided records early this year to the Kentucky Center for Investigative Reporting about sexual harassment investigations, it refused to provide the name of an accused employee because the allegation was not substantiated by an internal investigation. Those records became the subject of a lawsuit the Labor Cabinet filed against KyCIR in April.
Labor Cabinet general counsel Michael Swansburg said in a hearing before Franklin Circuit Judge Phillip Shepherd that Kentucky’s open records law includes an exemption for privacy. The risk to the reputations of employees who are falsely accused should qualify, Swansburg said.
“This is not about whether or not [KyCIR has] the right to seek that information,” Swansburg said. “It’s just if the cabinet, as a state agency, can redact that information in this context.”
Last November, KyCIR requested documents from every Kentucky cabinet outlining all complaints made by state employees related to sexual harassment, and information about any related internal investigations, settlements or disciplinary actions.
Most cabinets complied with KyCIR’s requests, although the amount of information officials released varied from agency to agency. KyCIR appealed the Labor Cabinet’s response to the attorney general’s office, and in March, the office ruled that the cabinet violated the Open Records Act by withholding the name of an employee whose alleged sexual harassment of a co-worker wasn’t substantiated.
The Labor Cabinet in turn sued Kentucky Public Radio, the legal entity of KyCIR’s parent company, to prevent releasing the unredacted records. It was the second state cabinet to do so.
To appeal an attorney general’s decision, Kentucky state agencies are required by law to file suit against whoever requested the records.
Shepherd said he is concerned about “a lax culture” of tolerating sexual harassment across state government — and that employees with multiple unsubstantiated complaints against them could escape scrutiny, if the court allowed them anonymity.
Allowing state agencies to withhold the names of anyone whose claims they can’t prove also might offer “an invitation to cover up inappropriate conduct,” Shepherd said.
“I don’t know how we deal with that, if there’s not some disclosure of the alleged perpetrator,” Shepherd said.
Swansburg said the Labor Cabinet releases enough information about investigations for the public to determine how cases were handled even without knowing the names of the accused, and that enough context is released to see if there is a problem under a particular supervisor, for example.
Swansburg acknowledged that the state attorney general has consistently ruled over the years that state agencies should release information about sexual harassment whether the allegations are proven or not. But Swansburg pointed out that the attorney general’s office also refused to give KyCIR the name of one employee whose case wasn’t substantiated.
“If the standard is good enough for the attorney general, then it should be good enough for the Labor Cabinet,” Swansburg said.
Michael Abate, a Louisville attorney representing KyCIR, said that argument is a “red herring” to the real issues in the case: whether the public can assess the quality of internal investigations or be adequately informed about serious misconduct allegations without ever knowing who was accused.
He noted that sexual harassment in particular is often underreported, and that publicizing allegations can have a domino effect.
“Transparency, and the accusations themselves, are very important to the public in bringing some of these things to the fore,” Abate said. “The past few months have shown us time and again... Sometimes all it takes is the first allegation being made publicly for the dam to break and the accusations to come forward.”
Shepherd said he expects to issue a ruling soon, but he didn’t specify a time frame.
A similar suit filed against KyCIR by the state Finance and Administration Cabinet is still pending.
Contact Kate Howard at (502) 814.6546 or khoward@kycir.org.
