Ruling expected this month in UK’s lawsuit against student newspaper

Fayette Circuit Court Judge Thomas Clark said he will rule by the end of the month, “if not sooner,” in the University of Kentucky’s open records lawsuit against the Kentucky Kernel, UK’s independent student newspaper.

Lawyers for UK and the Kernel argued Friday about whether university investigations of alleged sexual harassment and assault of students should be considered public records.

At issue is whether the university should have to release records pertaining to its investigation of James Harwood, an associate professor who resigned this year following accusations of sexual misconduct and sexual assault by students. He did not admit guilt.

Joshua Salsburey, the attorney representing UK, argued the records should be kept secret in order to protect the privacy rights of students, saying their identities could be exposed if the information were released. Thomas Miller, an attorney for the Kernel, rebutted that identifying information can be redacted from the documents and that the Kernel has protected the identities of victims who have come forward.

Salsburey contended that the university should not have to release the investigative file because doing so would violate students’ rights under the federal Family Educational Rights and Privacy Act.

He said any student named in the documents would have to give written permission for the information to be released.

“Disclosing details such as the students’ field of study, academic status, research interests, projects, advisers, dates or places of the events in question, other circumstances predating or happening since the experiences, can make it possible for the Googlers or the Facebook nerds, whatever you want to call it, to track them down and expose them to further information,” Salsburey said.

The Kernel requested records from the investigation last spring under Kentucky’s Open Records Act. The university refused to release the documents, and when the Kentucky Attorney General’s Office ruled in favor of the Kernel, UK sued the Kernel in an attempt to overturn the attorney general’s decision.

Miller argued that an investigation into the actions of a professor was not “sacrosanct” and immune from open records law just because students may be involved. He said that through “reasonable redaction,” the records could be disclosed.

“The only question is can the university hide behind its inadequate investigation, behind its failure to disclose to the public that they have a predator that was going to move on to another educational institution?” Miller said.

Miller said the Kernel was willing to agree to “reasonable redaction,” which would allow the university to remove names and, in this case, some of the specifics of the alleged sexual attacks.

Salsburey said the university had “reasonable suspicion” that the Kernel knew the identities of two of the alleged victims, which means that releasing any information could lead the the public identification of the students.

Miller argued that there are likely more than two students identified in the case, which means other parts of the investigation could still be released to the newspaper.

“There’s bound to be plenty in those records that are not specific to Jane Doe 1 and Jane Doe 2,” Miller said.

The Kernel was able to obtain parts of the investigative file from other confidential sources and has written several articles about the allegations against Harwood.

“Had it not been for the disclosure of what happened, he could have slipped out of town and many others could have been his victims,” Miller said.

Two of the alleged victims have attempted to join UK in the lawsuit, but their attorney, Daniel Cohen, an Atlanta-based attorney with the Washington-based law firm Baker Donelson, was not allowed to present an argument at the hearing.

Daniel Desrochers: 502-875-3793, @drdesrochers, @BGPolitics