UK wins first round to keep secrets

The University of Kentucky won a round Tuesday in its battle against The Kentucky Kernel, the independent student newspaper that pursued the story of a professor accused of sexually harassing students.

Circuit Court Judge Thomas Clark agreed with UK’s contention that the Kernel did not have the right under Kentucky Open Records law to documents relating to UK’s investigation of the case, even with the names and other identifying information about the victims redacted.

The Kernel said it will appeal the ruling.

Still undecided is UK’s related legal fight with the Kentucky Attorney General. The AG’s office is the first point of appeal when open-records requests are denied by an institution.

When the Kernel appealed UK’s refusal, the AG asked to review the contested documents confidentially as it considered the case. Although that is routine in similar cases, UK refused.

Clark has yet to rule in that matter. Holding for UK would essentially signal to Kentucky’s public institutions that they alone can decide what the public has a right to see or know.

UK President Eli Capilouto said Tuesday that “more transparency and openness” are critical but continued to insist that withholding the records protects the victims, not its institutional secrets, and that the Kernel’s ongoing coverage has had a chilling effect on reports of sexual misconduct on campus.

Let’s take the latter claim first.

In a court filing last fall, UK cited a comparison between 59 sexual-harassment and assault complaints on campus from July to October 2015, and 38 during the same months in 2016 as evidence the Kernel’s coverage discouraged victims from coming forward.

It’s a leap, at best, to assert that one factor is responsible for the different numbers, or that only two years describes a valid trend.

As for the other point, Clark notes in his decision that the Kernel got onto this story because two of those who complained about professor James Harwood’s behavior were disturbed when UK, after investigating, reached an agreement for him to resign, with several months’ additional pay, and move on with a clean record to another institution.

Despite UK’s stonewalling, the Kernel got the documents through confidential sources and published details about the allegations against Harwood, without naming the victims.

With that information public, and after meeting privately with Capilouto, the two victim-witnesses, still UK students, told the court in November that they agreed with UK’s refusal to release the records.

It’s important, of course, to respect the victims’ concerns. But it is also important to remember that it was the Kernel, and not UK, that brought the sordid story of the allegations against Harwood to light.

And it is UK that has persisted in trying to hold its secrets tight, not only from the Kernel and the public but also from confidential review by legal professionals at the Attorney General’s office.

This story was originally published January 24, 2017 at 7:06 PM with the headline "UK wins first round to keep secrets."