The University of Kentucky violated the state’s Open Records Act with its blanket refusal to provide investigative documents from a sexual harassment case involving a former UK associate professor, the Kentucky Court of Appeals ruled Friday.
The appeals court sided with a challenge brought by the UK student newspaper, the Kentucky Kernel, and Attorney General Andy Beshear, overturning a 2017 decision by Fayette Circuit Judge Thomas Clark, who ruled for the UK administration.
“Here, there is more at stake than simple curiosity. The public has an interest in the investigative methods used by its public agencies and to know that a publicly funded university has complied with all federal and state laws,” Judge Kelly Thompson of Bowling Green wrote for the three-judge panel.
“In this instance, the university has not yet made any attempt to comply with the Open Records Act in any meaningful way,” Thompson wrote. “It has taken the indefensible position that the records are exempt because it says they are and it must be believed. That position is directly contrary to the goal of transparency under the Open Records Act.”
In 2016, the Kernel filed requests under the Open Records Act seeking any documents about sexual harassment or sexual assault complaints made against UK associate professor James 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.
UK refused to release the documents, either to the Kernel or to the attorney general’s office in Frankfort after the newspaper appealed its open records denial. The documents would allow the victims publicly to be identified, even if names and other personal identifiers were redacted, UK argued. Also, UK said, the documents are exempt from public disclosure under the Family Educational Rights and Privacy Act, known as FERPA.
The Kernel later obtained the investigative documents from a source and published an article detailing the allegations against Harwood. The newspaper did not identify the victims.
“It is just as much our goal to protect the identities of the victims in this case,” said Rick Childress, the Kernel’s editor, in a phone interview Friday from Washington, where he has a summer reporting internship with McClatchy. “If anyone ever comes forward to the Kernel again in the future, we’ll protect that individual’s identity even as we perform our oversight roles at the university. We want to be trusted by our sources and the public to do our job.”
UK President Eli Capilouto disparaged the motives of the Kernel and other news media in a lengthy statement he read aloud at a Board of Trustees meeting in September 2016, saying that his only interest was to protect the identity of the victims who had the courage to report their assault.
“In printing salacious details to attract readers, they have effectively identified the victim survivors,” Capilouto said. “You can easily find them.”
On Friday, the Court of Appeals rejected UK’s blanket denial.
The court sent the case back to Fayette Circuit Court with instructions for 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.
If the Kernel requests, as the prevailing party, the circuit judge also is allowed to consider the award of court costs, legal fees and penalties against UK as provided under the Open Records Act, the appeals court ruled.
The decision is a serious loss for college administrators who try to hide embarrassing facts from the public, said Thomas Miller, the Kernel’s lawyer. Student journalists have a similar battle ongoing with Western Kentucky University, to get investigative records of sexual misconduct allegations against university employees there, Miller said.
“I think it’s an outstanding decision,” Miller said.
“They have completely eviscerated this argument that FERPA, the federal privacy law, somehow prevents universities from releasing any kind of employee records if a student was involved. The court saw right through that charade. And that is significant, because if a university anywhere in the commonwealth does anything wrong or gets into a problem, a student is almost certainly going to be involved,” Miller said.
In a prepared statement, UK spokesman Jay Blanton said the appeals court ruling affirmed UK’s belief that students’ privacy must be protected.
“A court has reaffirmed our actions in that respect and the steps we took to protect our students.” Blanton said.
“We continue to have grave concerns about the chilling effect any breach of a student’s privacy will have on the willingness of victim-survivors to come forward and seek support and justice,” he said. “In the case at hand, The Kernel published the academic department, degree program (with a small number of students), and gender of the victim-survivors. In such cases, an individual’s identity could be easily revealed in a quick set of mouse clicks by a skillful Googler relying upon records already publicly available.”