UK defies logic, law to keep secrets

Eli Capilouto
Eli Capilouto

University of Kentucky President Eli Capilouto and his bevy of lawyers are powerful people, entrusted with great resources and responsibilities but none of that gives them the right or obligation to ignore Kentucky law.

Yet, that is just what Capilouto is promising to do in his odd campuswide email explaining the university’s intention to sue the Kentucky Attorney General, the independent student newspaper and others to protect UK’s secrets.

Like a clumsy essay that keeps a teacher up late, Capilouto’s explanation for why UK is going to court to fight “a series of legal actions regarding open records and meetings,” ignores fact and defies logic.

“When we make decisions about what records we share with the public, we are guided by the values we cherish,” Capilouto wrote.

No. The Kentucky General Assembly has passed laws governing the obligations of public institutions to do their work in the open and that is what should guide UK’s decisions in this arena. To put it another way, UK is obligated to cherish the values set out in Kentucky law.

Capilouto goes on to imply that asking for investigation records on a professor accused of sexual harassment threatens the privacy of the student making the allegation; and that asking for data on survival rates of patients is tantamount to revealing individual health records.

Again, no and no.

UK claims investigations that didn’t lead to discipline are necessarily incomplete and so exempt from open records laws. Following that logic, anytime UK buys someone out to assure secrecy, regardless of who or what is being protected, the process is none of our business.

This is one of the defenses UK is mounting in its battle with the independent student newspaper, the Kentucky Kernel.

Will Wright, the editor of the Kentucky Kernel, filed an open records request after he got wind of a tenured professor who left following an investigation of charges he sexually harassed a student. Wright asked for documents related to the investigation. UK quickly turned him down, claiming they were “considered preliminary,” and that releasing them would be an “unwarranted invasion of personal privacy,” and violate attorney-client privilege.

In Kentucky, the first line of appeal in an open records denial is to the attorney general, whose rulings in these cases carry the force of law.

Wright appealed UK’s rejection to the AG. The AG asked UK to provide some information, which it refused to do.

The AG then ordered UK to provide Wright with the documents he’d requested, “with the exception of the names and personal identifiers of the complainant and witnesses.”

UK has not complied with that order and it is one of those Capilouto says UK will appeal in circuit court.

There’s a similar pattern in other cases; UK stonewalls the AG’s requests and relies instead on imaginative legal interpretations to draw the cloak of secrecy ever more tightly around its actions.

With a legal department in-house and the resources to pay outside attorneys, UK can drag this on for a long, long time.

It’s not a bad strategy: Drag it out, hope the opposition runs out of money or energy or moves on to something else. If in the end UK loses the mere fact of being far removed in time will likely blunt public interest.

It is, though, bad public policy and a betrayal of the concept of a university as a place that should encourage not squelch the search for information.

Capilouto knew, of course, that he had to address this contradiction. Here, again, his argument fell short.

“A foundational value must always be the free, open and vigorous exchange of ideas,” he wrote. And, he said, about 90 percent of the time UK does follow the law and release requested information.

Of course, the next word is “but.” There’s that other 10 percent, which Capilouto describes as “a handful of very specific cases,” where UK must assert its paternal role to “protect the privacy and dignity of individual members of our community.”

Then, Capilouto declares UK “will never disclose the name of a victim of violence.”

Stirring but irrelevant. As the AG notes, names and other identifiers of both victims and witnesses are to be withheld from any release. And, both the Kentucky Kernel and this newspaper have policies against identifying victims of sexual offenses.

But we all have reason to want to know how UK handles allegations of harassment. A public examination of the process could alert students to their rights and professors to their obligations. It would also reassure Capilouto’s “community” that when something bad happens it won’t be hushed up to avoid embarrassment.

Woodrow Wilson, who served both as president of this country and of Princeton University, understood the implications of secrecy.

“Everybody knows that corruption thrives in secret places, and avoids public places, and we believe it a fair presumption that secrecy means impropriety,” he wrote in 1912.

That’s still true today.