Supreme Court sides with student newspaper in dispute with UK over sexual misconduct records
The state’s Supreme Court ruled unanimously that the University of Kentucky violated the state’s open records law when it declined to hand over investigatory documents related to a former professor’s alleged sexual misconduct that were requested by the school’s student newspaper.
The long-running open records dispute — which began in 2016 — now heads back to circuit court where the university will have to separate the withheld, redacted documents into two piles, releasing those that are not exempt under privacy rules and to state why each individual record that it withholds is exempt under the law, according to a decision handed down on Thursday.
How fast those documents — about 470 pages related to the alleged sexual harassment investigation of former professor James Harwood — are separated and categorized into exempt and non-exempt piles will depend on how busy the trial court judge is and how quickly the university complies with the court order, said Tom Miller, the attorney representing the Kernel.
“While we respectfully disagree with the Court’s decision today, we are confident that we will be able to make our case to the Circuit Court about what records must remain private to protect the privacy rights of our students,” said Jay Blanton, UK spokesperson.
The court’s decision came after attorneys representing UK and the Kentucky Kernel, the student newspaper, argued before the state’s highest court last October in a socially distant courtroom in Frankfort.
Handing over redacted documents pertaining to the university’s sexual misconduct investigation of Harwood, a former entomology professor, to the Kernel could lead to the unwanted public identification of the professor’s victims, university attorneys told the court in October.
Conversely, the public would have no knowledge of sexual assaults allegedly perpetrated by Harwood had the Kernel not begun to publish and investigate allegations against him, the newspaper’s attorney rebutted then. 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 Kernel has long denied any intention of identifying the involved students and requested the documents with student indentifiers redacted.
“I was very disappointed in how the university handled (the case),” Miller said Thursday. “I admire greatly the students who fought for the benefit of all of the university students, and I am very pleased with the fact that the Supreme Court unanimously agreed with us.”
Thursday’s decision from the Supreme Court, written by Deputy Chief Justice Lisabeth Hughes, is the latest rebuttal to the university’s position — which has long held that the records are exempt from public view under the Family Educational Rights and Privacy Act, known as FERPA.
“The Open Records Act encourages the ‘free and open examination of public records’ even where examination ‘may cause inconvenience or embarrassment to public officials or others. . .’ The University may find The Kernel’s (Open Records Act) requests burdensome and intrusive or even ill-advised but the University is not authorized to decide what public records must be disclosed and what records can lawfully be withheld,” Hughes wrote.
The Kernel filed requests under the Open Records Act in 2016 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.
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.
In 2017, Judge Thomas Clark sided with the university in Fayette Circuit Court and ruled that the documents were exempt from public view under FERPA. The Kernel appealed that decision and in 2019 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 — about 470 pages of documents related to the investigation — 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.
In agreeing with the appeals court, Hughes wrote in the Supreme Court decision that the circuit court “clearly erred” when it decided that all of the investigatory documents were exempt under FERPA. The education privacy law should not be used as to shield unsightly documents simply because a student may be involved in a case.
“The Kernel requested the Harwood Investigative File, in part, to understand how the University handled the students’ complaints and the investigation,” the Thursday Supreme Court decision stated. “The Kernel contends that the University’s actions prior to entering into the separation agreement with Harwood should be made public.The public’s right to know how effectively public institutions perform their taxpayer-funded functions is unquestionably central to the (Open Records Act).”
This story was originally published March 25, 2021 at 10:42 AM with the headline "Supreme Court sides with student newspaper in dispute with UK over sexual misconduct records."