Time for UK to stop wasting time, money to defend its indefensible ‘invisibility cloak’

A five-year court saga is finally over, and here’s the final say: The University of Kentucky is not above the law when it comes to the state’s Open Records Act.

In this case, it’s definitive and unanimous: Every single member of the Kentucky Supreme Court agreed that UK violated the state’s open records law when it refused to release any investigative documents to the Kentucky Kernel student newspaper regarding a professor’s accused of sexual assault against two students.

It all started in 2016 when UK investigated two accusations of assault against entomology professor James Harwood. The school found enough evidence to fire him, but instead agreed to let him resign quietly into the night to another job, tenure intact, with no one the wiser.

It’s been alarming to watch UK spend so much time and money flouting its legal duty for the past five years — at one point it refused to allow then-Attorney General Andy Beshear to examine the documents confidentially to see if they could be released — but comforting that the Supreme Court put their arguments to waste. Specifically, the court agreed that Kentucky Kernel reporters had no interest in identifying the students involved, but they thought it was important to understand more about how UK had investigated such a serious case involving students but had still been perfectly willing to let a professor accused of sexual assault scoot off to another school without a word of warning about the severity of the charges.

In one of the best lines of the decision (and there are many), the Supreme Court asserted that the federal student privacy law, FERPA, is not some kind of “invisibility cloak,” that provides a blanket over all information. Nor does it automatically overrule the state open records law, despite UK’s frequent assertions that it does. It is perfectly possible to report on how a university investigates such a case without revealing the who.

But throughout, UK maintained some kind of righteous indignation over its secrecy; at one point, UK President Eli Capilouto accused Kernel reporters — UK undergraduates! — of merely wanting to print “salacious” details about the case. The only thing that’s salacious is how much public money UK has and will spend on this case, given that the Kernel’s lawyers are going to ask the court for UK to pay its fees.

The same situation occurred with the Herald-Leader’s four-year case against UK for refusing to release documents regarding a cardiology clinic they bought in Hazard. UK paid an outside law firm more than $118,000 to lose that one case.

The UK Board of Trustees oversees UK’s $4 billion budget, greatly dwarfing those who protect the public’s right to know. There’s no doubt they can and have spent hundreds of thousands of dollars to make a point, but trustees might want to ask if defending these indefensible cases is the best use of a public university’s dollars.

The decision marks a careful line in the sand for UK: “The University may find The Kernel’s ORA requests burdensome and intrusive or even ill-advised but the University is not authorized to decide what public records must be disclosed and what records can lawfully be withheld.”

That’s an important important ideal in our state: That although the University of Kentucky is a vastly powerful and important flagship institution, it is still accountable to the public whose tax and tuition dollars brought it into being and operate it still.

This story was originally published March 25, 2021 at 1:28 PM.