Should UK release sexual harassment records? Decision now rests with Ky. Supreme Court
The long-running open records dispute between the University of Kentucky and its student newspaper reached its largest stage Friday with dueling arguments between the university and the Kentucky Kernel’s attorneys before the state’s highest court.
Handing over redacted investigatory documents pertaining to a former professor’s alleged sexual misconduct to the Kernel could lead to the unwanted public identification of the professor’s victims, university attorneys told the court in their bid to overturn a lower court ruling that found UK in violation of the state’s open records law.
Conversely, the public would have no knowledge of sexual assaults allegedly perpetrated by James Harwood, a former UK professor, had the student newspaper — the Kentucky Kernel — not begun to publish and investigate allegations against him, the newspaper’s attorney rebutted. Further, without documents detailing the university’s 2016 investigation into Harwood’s conduct — which the paper requested but the university denied — the general public would have limited oversight over the university’s investigatory process.
The court’s seven justices peppered attorneys from both sides with questions in a courtroom filled with reminders of the COVID-19 pandemic. Arguing attorneys spoke from behind a plexi-glass barrier and some justices had to briefly remove masks to get out muffled questions. In-person public attendance was limited and spaced out, while the proceedings were livestreamed online.
It’s unclear exactly when the court could announce a decision in the case as the pandemic has injected more uncertainty into a process that typically already grinds out over months.
In 2016, when the Kernel filed requests under the Open Records Act seeking any documents about sexual harassment or sexual assault complaints made against Harwood, who resigned his post after two female students accused him of harassment. Harwood, who taught insect ecology in the College of Agriculture, denied wrongdoing.
The university allowed Harwood to retire with months of pay and benefits at the conclusion of the investigation before a formal university hearing, the Kernel previously reported. On Friday, some of the court’s justices questioned whether another education institution could have hired Harwood without knowledge of prior sexual assault allegations.
According to UK spokesperson Jay Blanton and the university’s counsel, the university provided over 500 pages of Harwood’s employee records to the Kernel, his separation agreement and resignation.
The university allowing Harwood to retire before a tenure revocation process enabled UK to distance the professor from those accusing him of assault and quickly shield the victims from potentially more harassment, Blanton said. The university’s investigation wrapped up within a few months, he said, whereas a tenure revocation process could have added 18 months or even longer to the proceedings.
UK refused to release the investigatory documents, either to the Kernel or to the attorney general’s office in Frankfort after the newspaper appealed its open records denial. The attorney general’s office — run then by current Gov. Andy Beshear — found the university in violation of the open records law.
To appeal the attorney general’s decision, the university sued the student newspaper, arguing that the documents in question would allow the victims to be publicly identified, even if names and other personal identifiers were redacted. Also, UK said, the documents are exempt from the public view under the Family Educational Rights and Privacy Act, known as FERPA.
In 2017, Judge Thomas Clark sided with the university in Fayette Circuit Court. The Kernel appealed that decision and last summer a state appeals court reversed Clark’s decision and sided with the student newspaper.
The appeals court sent the case back to Fayette Circuit Court and instructed UK to separate the requested documents into two piles, releasing those that are not exempt under privacy rules and to “state with exactness” why each individual record that it withholds is exempt under the law. If personal information can be redacted from documents, making them safe to release, UK should do so, the court said in 2019. But prior to that the university appealed to the state’s highest court.
On Friday, UK further argued that only the victims in the case should have say over how and when their alleged assaults are publicly discussed. Continued reporting of the case could re-traumatize the victims, Joshua Salsburey, one of the university’s attorneys told the court.
Tom Miller, the Kernel’s attorney, stated that the newspaper has never been interested in identifying the victims and that without the newspaper, Harwood’s alleged acts may have never come to light. The newspaper seeks further investigatory documents to view the totality of the university’s process, not to shed more light on the traumatic experiences of the victims.
In her questions, Justice Michelle Keller said the public had a right to know if Harwood was continuing to receive taxpayer or tuition-funded pay from the university after the investigation and if after leaving the university, Harwood was able to find employment in a similar position elsewhere, possibly without another institution’s knowledge.
Keller said she saw the importance of both protecting the privacy of student victims and the newspaper’s and the public’s right to oversight of the investigatory process. Keller noted that there’s been nationwide occurrences of education employees in positions of power sexually harassing those who they teach and are in charge of.
“Isn’t this going to be an ongoing problem?” Keller said of sexual misconduct at higher education institutions.
Miller said he was optimistic after the conclusion of the arguments and added that if the court rules in favor of the Kernel that — like the appeals court — it will send the case back to circuit court and ask that UK separate specific documents from the investigatory report and specifically cite which exemption they fall under.
Blanton said the university processes and complies with more open records requests than almost any other institution in the state. He said that UK generally only pushes back on records requests when information released could violate victim or patient privacy.
This story was originally published October 23, 2020 at 2:01 PM with the headline "Should UK release sexual harassment records? Decision now rests with Ky. Supreme Court."