The University of Kentucky has declared open season on the Kentucky Open Records Act.
UK’s assertion that it, alone, can decide when a record should be released flies in the face of the open-records law passed by the General Assembly in 1976.
It’s easy to get lost in UK President Eli Capilouto’s assertions that the university is only trying to protect the privacy of sexual assault victims, or in the convoluted and imaginative legal arguments UK’s putting forth. Just this past week, an attorney connected to UK filed a petition for two alleged victims seeking to prevent release of the disputed documents.
But beneath all the drama, the fundamental question is whether a public institution is subject to the rule of law, including the open-records law. UK’s unacceptable answer is “no.”
First, no one is asking UK to divulge the names of the victims. Indeed, during the eight months the Kentucky Kernel, UK’s thankfully independent student newspaper, has been reporting on the case, it has not named any alleged victim of Professor James Harwood. Nor has any other news outlet.
Even more critical in terms of the law, UK is denying the documents not just to the Kernel but also to the Office of the Attorney General.
Disputes over whether a record is public go first at the AG’s office, the agency entrusted with interpreting and enforcing open-records law. So, when UK refused the Kernel’s request for records related to the harassment charges, the Kernel appealed to the AG.
Reasonably, the AG’s office asked UK to provide the disputed documents for in camera, or private, review. How could it determine whether UK was appropriately withholding them without seeing them? The AG wrote that names and other identifying information could be redacted from the copies and “we will maintain the confidentiality of those records.”
This has been standard procedure for 40 years.
But none of that was good enough for UK, which refused the attorney general’s request. Since UK had produced nothing to support its defiance of the open-records law, the AG ordered it to comply with the Kernel’s request.
While the open-records laws have definitely embarrassed some institutions and public office holders, we couldn’t find evidence that private lives have been inappropriately open to public inspection during the four decades the law has been in effect.
UK has appealed the AG’s order to release the documents by suing the Kernel in Fayette Circuit Court, as is its right.
But the university has also launched a campaign to vilify the Kernel and claim the moral high ground for the administration that worked out a deal for Harwood to resign with a half-year’s pay and no formal charges against him.
UK asserted in one court filing that the Kernel’s reporting has made people afraid to file complaints of sexual harassment for fear of being identified, a claim one student journalism expert called “shameful manipulation.”
The Atlanta attorney who filed the petition last week, reported to be representing the women for free but also paid by UK for other work, wrote in the petition “the line between the laudable goal of transparency and the blatant invasion of privacy has been crossed.”
But the question remains, who decides when or whether that line has been crossed: UK and its allies or the system for adjudication set out in Kentucky law?
Perhaps Capilouto and other UK administrators do believe, despite evidence to the contrary, that they are protecting the victims of sexual assault from public exposure.
But if UK succeeds in court — although it’s hard to believe it will — its principle victory will not be for victims but for secrecy in our public institutions.
In a statement last week, Attorney General Andy Beshear said UK is “attempting to turn the act into a ‘trust me’ law” by refusing to let his office review documents. “Such an approach would allow a bad actor to refuse to produce documents based on blatantly false exemptions and no one could hold them accountable.”
Explaining the decision to sue the Kernel in a campus-wide email, Capilouto wrote, “When we make decisions about what records we share with the public, we are guided by the values we cherish.”
Surely one of the most cherished values is respect for the laws that govern and protect us all.
UK should drop its lawsuit against the Kernel, provide the documents to the attorney general and stop this assault on open-records laws.