Kentucky university takes newspaper to court in order to withhold records

Published 6:08 am Monday, November 1, 2021

The Kentucky State University Foundation is taking The State Journal to court in hopes of not releasing records related to its expenses and to further assert that it is not a public agency.

The Office of the Attorney General issued an opinion last month that the school’s primary private fundraising arm is a public agency.

Assistant Attorney General Matthew Ray opined in favor of The State Journal, which appealed the KSU Foundation’s denial of a request for several records last month.

Frankfort attorney Ed Logan, of Logan Burch & Fox, appealed on behalf of the KSU Foundation to Franklin Circuit Court on Oct. 22. The State Journal received its summons on Thursday.

Requested records include any payments made to former President M. Christopher Brown II in the last two years, payments made to fund Brown’s travel, payments made to fund his birthday parties and payments of more than $1,500 to any entity or individual. The State Journal later offered to limit the last request from 2017 to present.

In the appeal, Logan claims that the attorney general’s office failed to properly interpret state law in deeming the KSU Foundation a public agency.

“This interpretation violates the plain meaning of the text of the Open Records Act,” Logan wrote. “The position of the attorney general specifically ignores a requirement that a board must be ‘established, created, and controlled by a public agency’ to be subject to the act.”

Ray’s opinion relied frequently on a 1992 Kentucky Supreme Court ruling that the foundation was a public agency. He wrote that there was insufficient evidence that the organization had changed enough since then to no longer be considered a public agency.
“From the evidence in this record, the Foundation appears to be the same entity it was in 1989, prior to the Court’s holding in Kentucky State University Foundation Inc. that the foundation is a public agency,” Ray wrote. “… The foundation’s claim that it is a different entity than the one before the court in 1992 is not supported by the record before this office.”

The foundation accepts donations from any source for the purpose of benefiting KSU. It has its own separate endowment fund, which has increased from $455,252 in 1982 to almost $12.3 million as of March 2021, according to a document shared by KSU Foundation Executive Director Donald Lyons.

The university’s website directs all potential donors to make gifts payable to the foundation, and lists the university address for the Office of Institutional Advancement as the location to which people can send gifts to the foundation.

No university staff or officials serve on the foundation’s staff or board, per Lyons. The foundation also owns its own property, which sits adjacent to the university.

The disbursement request form lists five university employees that need to sign off on expenses before ultimate approval by Lyons, a former athletic director at KSU who has held several posts at the school.

In late spring, The State Journal submitted an open records request to the KSU Foundation for its audit, which was denied. However, Lyons met with The State Journal and provided a copy of the audit while still asserting that he did not believe the foundation was a public agency.

The audit, which includes financial statements from fiscal year 2020 and 2019, was requested by The State Journal after KSU could not approve its audit because it needed the foundation to complete its own.

The State Journal has 20 days from Thursday to reply to the foundation’s summons. The case is assigned to Franklin Circuit Court Judge Phillip Shepherd.