Kernel To Appeal Open Records Ruling, Press For High Court Decision

A Fayette Circuit Court has handed a victory to the University of Kentucky in its bid to keep investigative documents in a sexual harassment case private, but an appeal is already in the works.

Monday, Judge Thomas Clark sided with UK in its case against the school’s student newspaper, the Kentucky Kernel, arguing the documents pertaining to a former professor accused of sexual harassment are exempt from open records rules and their publication could lead to the identification of the victims.

UK President Eli Capilouto applauded the ruling as a “strong statement about the criticality of privacy.”

“Without this, we’re never going to have victim-survivors some forward to report these cases so that we can adjudicate them,” he told WUKY.

The decision deals a blow to the Kernel, which has rallied support for their cause through social media and an online fundraising campaign. The court battle has prompted both campus protests and accolades for the independent newspaper.

“It was a bit of a stab to the heart,” says Kernel editor-in-chief Marjorie Kirk.

Kirk says the paper plans to appeal the ruling as soon as possible. She says, if left to stand, the decision would set a precedent permitting professors and others who are found responsible for sexual harassment to “move within academia unnoticed.”

“It would allow for this system to continue, not just at our university but at… universities across the entire United States. If one university allows it, all of them are allowed to do this,” she counters.

Capilouto maintains new safeguards, including a survey requiring incoming employees to disclose any past sexual or research misconduct, will adequately address those concerns. But Kirk says the paper takes issue with portions of the judge’s ruling and intends to push for a decision from the state’s highest court.

“We’ll go as far as our money will allow us,” she says. “I think that will get us through the Court of Appeals and we’ll see about the Supreme Court.”

Kirk says she plans to contact Attorney General Andy Beshear, who intervened in the Kernel lawsuit last September.

Reading into the Ruling

In the decision, Judge Clark characterized the documents as “educational records” that fall under the umbrella of a federal student privacy law. Clark went on to say the contents could not be “reasonably” redacted to protect victims’ names.

Institute for Rural Journalism and Community Issues Director Al Cross questions that conclusion.

“Redaction is a tricky exercise. I have to think though that, after having seen a lot of heavily redacted documents from federal agencies, that these documents could be redacted enough to protect identities for still holding the university accountable for how it handled the case,” he says.

When it comes to balancing those competing interests – privacy and institutional accountability – Cross sees university favoring one over the other.

“They say we’re not going to balance. We’re going to always side on the right of privacy and what that says is we are not siding on the side of our own accountability,” he says.

UK spokesman Jay Blanton disputes that claim, noting the university “gets about 800 open records requests a year, so in the past three years alone that’s about 2,500 requests. All but a handful of those we’ve complied with fully, responsibly, and comprehensibly. There are a handful of cases revolving around… constitutionally protected issues of privacy for students and for patients where we have taken issue violating the privacy of a victim.”

As for Monday’s ruling specifically, Cross hesitates to offer a full assessment, given the judge’s special access to the documents in question.

“It’s a well-reasoned ruling, but it’s difficult to evaluate it completely because the judge had access to the file,” Cross adds. “The attorney general did not have access to the file because the university refused to let the attorney general look at it.”

Blanton argues that’s in keeping with federal law.

“The attorney general has agreed with that position in the past. They’ve explicitly agreed with our position that we could not share records to the attorney general for review that are student records,” he says. “Now they’ve reversed themselves.”

If the Kernel presses ahead with its planned appeal, Cross says much could depend on the tone of the next court ruling.

“If the Court of Appeals renders a decision that is as clear as this one, it’s quite possible that the Supreme Court would just not want to hear it, but if the Supreme Court thinks that there are still legal issues or that the Court of Appeals may be off base, then it could decide to hear it,” he explains. “There is only the right to one appeal.”