Investigations

The Kentucky Labor Cabinet “willfully” withheld open records and must pay attorney’s fees and penalties to the Kentucky Center for Investigative Reporting, a judge ruled Tuesday.

Franklin Circuit Court Judge Phillip J. Shepherd awarded KyCIR more than $17,000 in fees. The state can appeal the decision.

In April 2018, the Labor Cabinet sued KyCIR to prevent the release of names of state employees accused of sexual harassment when those accusations were determined to be unfounded.

The lawsuit came after the Office of the Attorney General ruled that the “public’s interest in monitoring agency action outweighed the privacy interest of the employee who was exonerated of misconduct.” Rather than release the redacted information, the Labor Cabinet filed suit.

In Tuesday’s ruling, Shepherd determined that the Labor Cabinet disregarded legal precedent and previous rulings from the Office of the Attorney General when it redacted the name of an employee who was accused of sexual harassment, but an internal investigation didn’t find sufficient evidence to confirm the claim. It should not have been a “novel revelation” that this violated the Open Records Act, Shepherd wrote.

The Open Records Act would be “egregiously undermined if a public agency is permitted to haul citizen requestors into court” and make them pay to defend their right to open records, Shepherd wrote.

“The successful party would be effectively penalized for vindicating the public’s right to know under the Act, which would turn the policy of the Open Records Act on its head and discourage citizens from exercising their rights to obtain public records,” Shepherd wrote.

In October, Shepherd ruled that the Labor Cabinet and the Finance and Administration Cabinet, which had separately filed a similar lawsuit, had to turn over the names of employees accused of misconduct, no matter the outcome of the investigation.

“[T]he 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,” Shepherd wrote in his ruling on the Labor Cabinet.

The Labor Cabinet then released the information it had sued to protect; in this case, one single name: Hector Fonseca.

Fonseca was accused of making inappropriate sexual comments, exposing himself and forcing a female coworker to touch his genitals in 2016. Fonseca denied the allegations and was exonerated after telling cabinet officials he had accepted a transfer to another state agency.

Fonseca, who was under a domestic violence protection order at the time, has since been charged with drunk driving, misdemeanor domestic violence and felony child abuse. He remains employed by the state.

Deputy Labor Secretary Michael Swansburg said the Cabinet is reviewing Shepherd’s order and has no further comment at this time.

Eleanor Klibanoff covered Rust Belt decline and revival in Pennsylvania. She also worked for NPR and attended the George Washington University.