Do Unproven Harassment Allegations Warrant Secrecy? A Ky. Judge Will Soon Decide

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A Franklin County judge will soon rule on whether state agencies are justified in protecting the names of employees accused of sexual harassment claims that internal investigators didn’t substantiate.

Franklin Circuit Judge Phillip J. Shepherd heard arguments Wednesday morning in a case filed by the Kentucky Finance and Administration Cabinet against the Kentucky Center for Investigative Reporting. The finance cabinet’s general counsel argued that its employees deserve to remain anonymous when allegations against them are not proven.

Shepherd’s decision is still pending in a similar case, in which the Kentucky Labor Cabinet sued KyCIR to prevent releasing the names of its employees accused of sexual harassment, when an investigation didn’t substantiate the claim.

Shepherd on Wednesday questioned whether protecting names has the effect of protecting public agencies and making it easier to cover up wrongdoing.

“If we interpret the personal privacy exception to shield names in unsubstantiated cases, I don’t see any effective way the public can decide for itself whether there’s inappropriate conduct going in the public workplace,” Shepherd said.

KyCIR requested documents from every Kentucky cabinet last November about sexual harassment complaints and related internal investigations, settlements or disciplinary actions. The finance cabinet didn’t provide records for nearly three months, until KyCIR appealed to the attorney general’s office.

Records provided by the finance cabinet were heavily redacted, and Kentucky Attorney General Andy Beshear’s office asked for unredacted records to review. The finance cabinet refused, and the AG’s office in February ruled that the cabinet’s refusal to let his office view the documents violated the Open Records Act.

To appeal an attorney general’s decision, Kentucky state agencies are required by law to file suit against whoever requested the records. The finance cabinet sued KyCIR in March.

The Kentucky Labor Cabinet also sued KyCIR the following month.

Cary Bishop, general counsel of the Finance and Administration Cabinet, argued that the cabinet released investigative reports, and the public can consider the facts and effectiveness of its investigations even if the accused employee’s name is blacked out.

Unproven allegations can damage an employee’s reputation, Bishop said, and if the cabinet cannot substantiate the claim, they should be allowed to remain anonymous.

“Public employees still retain some privacy rights,” Bishop said.

Michael Abate, an attorney with Kaplan Johnson Abate & Bird representing KyCIR, called it a “troubling line of reasoning” to conclude that a harassment allegation is false simply because the Cabinet’s investigation didn’t prove it. He noted that many investigations boil down to “he said, she said” interviews.

Abate also said that the finance cabinet’s refusal to allow the attorney general to review the unredacted documents placed the burden on KyCIR to defend itself in court instead of through the attorney general’s process.