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Are Sexual Harassment Records Public? One Law, Many Interpretations

Kate Howard

Every public agency in Kentucky has to follow the same state laws about sharing records with the public.

But every public agency does not interpret these laws the same way -- at least, that’s what the varied responses to Kentucky Center for Investigative Reporting requests for documents tied to sexual harassment complaints appear to show.

In an effort to gauge the frequency and severity of workplace sexual harassment among state employees, KyCIR sent an identical open records request to more than 30 state agencies in November.

We asked agencies to scour records since 2012 and turn over every complaint of sexual harassment, sexual assault or gender-based harassment; the records that showed how they conducted investigations; and any settlements or employee discipline that resulted.

Ultimately, we got thousands of pages documenting 130 instances where a state employee alleged sexual harassment in the workplace. But still, the review lacks some important details, due to vastly different interpretations of how much information agencies are required to share with the public.

“That doesn’t surprise me but it does concern me,” said Amye Bensenhaver, director of the Bluegrass Institute Center for Open Government and a former staffer at the Kentucky Attorney General’s open records division.

Two departments -- the Department of Corrections and the Department of Juvenile Justice -- still haven't provided records four months after our request, citing internal delays. Six governmental bodies, including the Governor’s Office, State Treasurer and Auditor of Public Accounts, said no records exist, which would mean no one had complained of sexual harassment in those workplaces since 2012.

Some agencies, such as the Kentucky Transportation Cabinet, provided both the names of the accused employees and some of those who complained. Others, like the Finance and Administration Cabinet, refused to share names of people accused unless an investigator substantiated the allegation.

Three entities -- the Legislative Research Commission, the Kentucky State Police and the Kentucky Department of Military Affairs -- initially refused to provide any records at all.

On the heels of reports that state Rep. Jeff Hoover secretly settled a sexual harassment allegation, LRC general counsel Greg Woosley refused to provide any records about sexual harassment at all, saying our request was too vague to even determine what records we wanted.

We tried to ask the attorney general's office to weigh in on the Legislative Research Commission’s denial, but the legislature gave itself a different path years ago. The attorney general can weigh in on records disputes with just about every other public agency in Kentucky, but state law says that the Legislative Research Commission can handle its own appeals.

The Kentucky State Police and Department of Military Affairs are in the attorney general's purview, though. Both gave documents to KyCIR after we initiated appeals.

The attorney general’s office has long found that the public’s right to know whether sexual harassment is properly investigated outweighs most privacy concerns, according to Bensenhaver.

“That’s the only way to confirm that a public agency is uniformly discharging their duty to investigate and dispense appropriate disciplinary action,” Bensenhaver said.

For the same reason, employers should leave a copy of complaints and resulting investigations in an employee's personnel file, even if nothing comes of it, according to Indiana University law professor Jennifer Drobac. Records show that some of Kentucky's state agencies take unsubstantiated complaints out.

“You add up all these 'one times,' and it becomes a hostile work environment,” she said.

The records that agencies did provide show that uniformity is not a hallmark of the state's system for documenting, investigating and punishing sexual harassment.

In an opinion issued in January, the attorney general's office called sexual harassment investigations "matters of legitimate public concern which outweigh the privacy rights of the public servant.” But the attorney general’s office didn’t turn over all the details on its own sexual harassment complaint.

The records custodian redacted the name of an employee accused in 2013, saying his privacy outweighed the public’s interest and that records still demonstrated how the case was handled without his name.

Taylor Payne, the Attorney General’s records custodian, noted that open records issues are reviewed by different lawyers in his office, and he stands by that redaction.

Eleanor Klibanoff contributed to this report.

Contact Kate Howard at 502.814.6546 or khoward@kycir.org.

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