Judge rules against UK student newspaper in sexual harassment document dispute

A Fayette Circuit Court judge has ruled against the University of Kentucky’s student newspaper, the Kentucky Kernel, in its quest to review investigative documents in a sexual harassment case involving a former UK professor.

In a ruling issued Monday, Judge Thomas Clark agreed with UK that releasing the documents would allow the victims to be identified, even if their names and other personal identifiers were redacted. He also agreed with UK that the investigative documents are exempt from public disclosure under a federal student privacy law.

Kernel editor-in-chief Marjorie Kirk said the newspaper will appeal.

“The Kernel will continue to pursue the truth in this case and cases like it, which have further affirmed in our eyes that universities must be subject to transparency in their disciplinary conduct against students and faculty,” Kirk said. “We will continue to report on a system that has enabled professors and others who are found responsible for sexual misconduct to move within academia unnoticed.”

UK President Eli Capilouto, however, said he was gratified by the decision in a campuswide email and a video.

“I am very pleased that the courts unequivocally sided with victims and survivors and their right that they be the only ones to tell their story,” Capilouto said in an interview. “Without this, we are never going to have victims/survivors come forward to report these cases so we can adjudicate them.”

Capilouto has said the Kernel’s actions had a chilling effect this past fall on the number of people reporting sexual misconduct to university authorities.

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.

Two of his alleged victims were angry that Harwood could pursue jobs at other schools, so they contacted the Kernel with information about the case. The Kernel then asked for the investigative documents in the case but was refused by UK, which cited federal privacy laws. The Kernel appealed, and state Attorney General Andy Beshear found UK in violation of the state’s Open Records Act. UK then appealed Beshear’s decision in Fayette Circuit Court.

Meanwhile, the Kernel obtained many of the investigative documents from a confidential source, but the victims decided that continued coverage of the case could reveal their identity. They subsequently filed an amicus brief supporting UK’s position in the legal battle.

The Kernel argued that privacy interests must be balanced against the public’s interest in holding governmental entities accountable. But Clark said he agreed with UK that although phone numbers and addresses could be redacted, “the record is so extensively laced with details of the alleged assault that redaction alone would not protect these complaining witnesses.”

Attorney Tom Miller, who represented the Kernel, said he “strongly” disagreed with the legal analysis.

One case cited by Clark, from the Florida Court of Appeals, would not apply to Kentucky’s open-records law, Miller said. The decision would allow schools to hide numerous records, he warned.

Miller also said that without the Kernel’s reporting, the public never would have heard of Harwood’s alleged misdeeds, including the next school that hired him.

“The Open Records Act requires redaction when it is possible to do so to protect privacy interests, and those are to be balanced against the public’s interests in ensuring the public entity is held accountable,” he said.

Beshear joined the case because his office had asked for an “in camera,” or confidential, review of the records in order to decide whether they should be released, a normal proceeding under the state’s open-records law. UK refused to let him see them privately.

“The court made today’s decision based on the same confidential review of documents that University of Kentucky officials denied the attorney general’s office,” Beshear said in a statement. “The statutory power of the attorney general to confidentially review such documents is necessary to avoid turning Kentucky’s Open Records Act into a ‘trust me’ law. Without the review, there can be no government transparency, and a bad actor can easily cheat the system. In the context of a university, it would allow an institution to hide serious issues related to sexual assault, to ignore victims, and to tell parents and families that a given campus may be safer than it is.”

Beshear said his office will continue his portion of the lawsuit, which is in front of Clark.

Frank LoMonte, executive director of the Student Press Law Center in Washington, D.C., also disagreed with the decision.

“The judge is clearly mistaken in making the all-or-nothing decision that every part of the documents is identifying, based on some fanciful theory that amateur sleuths will root around in university expense records to try to deduce victim identities,” LoMonte said. “Confidentiality laws apply to documents that are identifiable, not documents that might become identifiable with extensive additional detective work. By the judge’s logic, no redacted document could ever be made available to the public based on the theoretical possibility of being able to deduce whose records they are. That’s just not the way public-records laws work.”

LoMonte also said the ruling will enable schools “to enter into secret pass-the-trash agreements that enable wrongdoing employees to move on to other campuses with clean records to prey on unsuspecting students. Making campuses havens for sexual predators will be Eli Capilouto’s defining legacy and will stain the University of Kentucky’s reputation for many years to come.”

Capilouto has said UK will work to improve the sexual harassment investigation process for victims and the accused. Among other things, he wants to require job applicants to disclose any past sexual misconduct. Currently, only criminal records are checked for employment.

The spectacle of a university suing its own newspaper sparked headlines all over the country. In a quirk of Kentucky law, UK was required to sue the Kernel to move the case into circuit court. Capilouto also criticized the Kernel extensively for publishing what he called “salacious” details about the case, even as the paper won plaudits from other organizations for pursuing the fight.

The journalism faculty asked Capilouto to apologize to Kirk, which he declined to do.

Reporter Beth Musgrave contributed to this report.

Linda Blackford: 859-231-1359, @lbblackford

Related stories from Lexington Herald Leader