Western Kentucky University has sued its campus newspaper and the University of Kentucky campus newspaper to block access to investigative records of sexual misconduct allegations against university employees.
The suit was filed in Warren Circuit Court after the UK newspaper, the Kentucky Kernel, lost the first round in a separate lawsuit filed by UK to block the release of investigative documents in a sexual harassment case involving a former UK professor.
The Kernel is appealing the decision.
“It’s appropriate to say it’s troubling the university (WKU) is suing its own newspaper for practicing good journalism,” attorney Michael Abate told the WKU paper, the College Heights Herald. “Even if they have a valid basis for withholding information, they still have to submit redacted documents.”
Abate is representing the Herald.
WKU and UK have argued that releasing the documents would violate the privacy rights of victims and might deter future victims from reporting assaults.
“This complaint is reasonably necessary to prevent the potentially devastating consequences” of releasing the documents, WKU said in its lawsuit.
In January, Fayette Circuit Judge Thomas Clark agreed with UK that releasing investigative documents might allow victims to be identified, even if names and other personal identifiers were redacted. He ruled the records didn’t have to be released under a federal student privacy law.
The Kernel first wrote in April about the case of James Harwood, who left UK last year after investigators alleged that he had sexually harassed or abused several graduate students. His case was never adjudicated, and he was paid for several months after he left.
Kernel reporter Matt Smith filed requests under the Kentucky Open Records Act for similar documents at other public universities around the state. The College Heights Herald also asked for documents from WKU.
In its lawsuit, WKU said its “controversy is actually with the attorney general” after Attorney General Andy Beshear’s office ruled that the records on final actions in sexual harassment investigation must be turned over to the WKU paper and the Kernel. To appeal Beshear’s decision, the university filed suit in district court against the newspapers.
“It would be imprudent and irresponsible for WKU to comply with the AG opinion and produce the records when a sitting Kentucky judge has issued a written order ruling records of this kind are not subject to open records inspection — a ruling that has not, to date, been reversed,” WKU general counsel Deborah Wilkins said in a statement.
In response to the lawsuit, Beshear said Tuesday that campus assault is one of the greatest threats facing young Kentuckians.
“The choice of some universities to hide every aspect of how they investigate such crimes does not make our children safer,” Beshear said. “A university can protect the identity of any students involved, while at the same time embracing the type of transparency where parents can truly evaluate how safe a campus actually is.”
UK got headlines across the country for suing the Kernel. President Eli Capilouto has repeatedly criticized the campus paper for publishing details about Harwood’s case.
The other schools that turned down the Kernel received similar rulings from Beshear’s office. Kentucky State University has already sued the Kernel to appeal the open records violation. Eastern Kentucky University gave the Kernel copies of previous investigations with victims’ names redacted. Most newspapers do not identify the victims of sexual assault.
Northern Kentucky University, Murray State, University of Louisville and Morehead State University gave the Kernel some documents, but not everything requested.
“The Kernel is excited for the opportunity to approach more judges and courts with our case to seek a proper response,” said Editor Marjorie Kirk. “We disagree with what Judge Clark concluded about the nature of the documents and these investigations. We knew that our case against UK would likely set a precedent in future cases against UK, but the outcome of this case with WKU will be an indicator of how all colleges in Kentucky (quite possibly in all of the U.S.) will respond to requests for transparency from the public.”