A Kentucky judge has sided with the state’s flagship university in an open-records dispute involving a student newspaper’s dogged pursuit of documents it wants to review in a sexual harassment investigation of a former professor.
In his ruling Monday, Fayette Circuit Judge Thomas Clark reversed a state attorney general’s opinion in the case pitting the University of Kentucky and the Kentucky Kernel, the student newspaper. The AG’s office said last year that the university had violated the state’s open-records law by refusing to release documents on the professor’s case to the newspaper on the Lexington campus.
The university responded by suing the campus newspaper. Under state law, the AG’s opinions can be appealed, but the attorney general cannot be named as a party in the suit. The university said its dispute was with Attorney General Andy Beshear, not the campus newspaper.
In his ruling in favor of the university, Clark said the documents sought by the newspaper are “educational records” protected from disclosure by a federal student privacy law - the Family Educational Rights and Privacy Act.
“The investigative documents at issue not only relate to a former UK professor, but also to the complaining witnesses, who were UK students during the time of the alleged events,” Clark said.
The judge also said the documents “cannot reasonably be redacted” to protect the privacy of the professor’s accusers. If the records were released, the accusers’ identities would become known “with reasonable certainty,” he said.
“The record at issue is thoroughly interwoven with explicit details of the alleged sexual assault and other facts submitted by parties and witnesses,” Clark wrote. “Although the record also contains information such as names, addresses and phone numbers, which could reasonably be redacted, the record is so extensively laced with details of the alleged assault that redaction alone would not protect these complaining witnesses.”
The student newspaper will appeal the ruling, said one of its attorneys, Elizabeth Woodford.
“We strongly disagree with the court’s analysis,” she said. “We do not believe FERPA entitles the university to shield its investigation into an employee’s misconduct from public review.”
As for the judge’s finding that redactions wouldn’t protect the accusers’ identities, Woodford said: “We find it highly implausible that every single word in the file directly implicates a student’s privacy interests.”
UK President Eli Capilouto called the ruling “a victory for victim survivors and their rights and their privacy.”
“For UK, this legal process has always been about one primary goal - preserving the right of a victim survivor to determine how, when, or even if to tell her story,” he said in a statement. “We stand with survivors and we believe strongly that federal and state laws protect their right to privacy. Without privacy, we know victim survivors will not come forward to report. That’s what was at stake in this case.”
The case started last year when the Kernel published a story about a professor who resigned from UK amid a sexual-harassment investigation. The professor did not admit guilt.
The university provided its settlement agreement with the professor to the campus newspaper under the open-records law but refused to provide any investigative documents. The Kernel appealed to attorney general’s office.
Beshear eventually joined the case because his office had asked for a confidential review of the records to decide if they should be released. UK refused to let him see them privately.
Beshear said Tuesday his office will continue its portion of the lawsuit, which is still in front of Clark.
“The statutory power of the attorney general to confidentially review such documents is necessary to avoid turning Kentucky’s Open Records Act into a ’trust me’ law,” Beshear said in a statement. “Without the review, there can be no government transparency, as a bad actor can easily cheat the system.”
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