Judge overturns AG decision in Kentucky Kernel records fight





KENTUCKY—The Eighth Division Fayette Circuit Court ruled Monday against the Kentucky Kernel student newspaper in its fight to obtain investigation records of a University of Kentucky professor accused of sexual misconduct.

The decision, the latest in a nearly yearlong dispute, reverses a ruling by Andy Beshear, the Kentucky Attorney General, saying the University of Kentucky violated the state’s open records act in not releasing documents related to the investigation into multiple complaints of sexual misconduct toward students by former associate professor James Harwood.

After Will Wright, then editor-in-chief of the Kernel, requested the investigation documents in March 2016, the paper was only given Harwood’s settlement documents—the university withheld other documents citing various exemptions to the state open-records act.

A representative for two of the victims had approached the paper, concerned with the outcome of the investigation and the possibility Harwood could move on to another institution without anyone being aware of the charges against him.

The Kernel appealed the decision to Beshear’s office, who found fault with the university and ordered the entirety of the investigation documents to be released with the names and identifiers of the witnesses redacted.

Soon after, some of the documents, in redacted form, were leaked to the Kernel.

Less than a month after the ruling, the university filed a lawsuit against the Kernel in an attempt to overturn the decision. At the time, Jay Blanton, director of public relations for the university, said the complaint was not with the Kernel, but rather with the decision of the attorney general’s office that would force the university to “turn over private information about victim survivors to anyone, including the media, other students, employers, and strangers.”

In November, two victims reportedly detailed in the investigation documents joined the lawsuit against the Kernel, saying they no longer wanted the documents released to the public and the coverage of the records battle had sufficiently informed the public of Harwood’s misconduct.

Judge Thomas Clark ruled Monday that the investigation documents at issue were, in fact, “education records” protected in their entirety by the Family Educational Rights and Privacy Act, which requires schools to maintain the confidentiality of student records. Clark also ruled that an “in camera” review of the documents was not possible as they could not be properly redacted to protect the privacy rights of the complaining witnesses.

Current Kernel editor-in-chief Marjorie Kirk said in an article about the decision that the paper will continue its coverage of the university’s handling of sexual misconduct cases.

“The Kernel will continue to pursue the truth in this case and cases like it, which have further affirmed in our eyes that universities must be subject to transparency in their disciplinary conduct against students and faculty,” she said. “We will continue to report on a system that has enabled professors and others who are found responsible for sexual misconduct to move within academia unnoticed.”

Tom Miller, the Kernel’s attorney, said he disagreed with the ruling and Clark’s interpretation of FERPA.

“The judge expanded the reach of FERPA beyond the intent, and the judge’s view of the pervasiveness of FERPA in protecting records that do not involve students is inaccurate,” Miller said. “The university is attempting to cover its failure to appropriately investigate and disclose the results of an investigation of an abusive professor. Had it not been for the efforts of the student newspaper, future parents, students and employers would never have known about the actions of this professor.”

The Kernel will file a notice of appeal to the state Court of Appeals within 30 days, Miller said. The appeals process consists of a three-judge panel, which does not give consideration to how the Eighth Division Circuit Court ruled.

In a statement released Tuesday to the Kentucky community, University of Kentucky president Eli Capilouto praised the ruling as a victory for the rights and privacy of victim survivors.

“For UK, this legal process has always been about one primary goal – preserving the right of a victim survivor to determine how, when, or even if to tell her story,” the statement reads in part. “We stand with survivors and we believe strongly that federal and state laws protect their right to privacy. Without privacy, we know victim survivors will not come forward to report. That’s what was at stake in this case.”

Frank LoMonte, executive director of the Student Press Law Center, questioned Clark’s ruling in the case, saying the all-or-nothing decision on the confidentiality of the documents defies the core of privacy law.

“Confidentiality laws apply to documents that are identifiable, not documents that might become identifiable with extensive additional detective work,” he said. “By the judge's logic, no redacted document could ever be made available to the public based on the theoretical possibility of being able to deduce whose records they are. That's just not the way public-records laws work.”

LoMonte said the university’s response to the verdict was “stomach-turning,” and will disserve sexual misconduct survivors in the future.

“The bottom line of this ruling is that colleges will be able to enter into secret pass-the-trash agreements that enable wrongdoing employees to move on to other campuses with clean records to prey on unsuspecting students,” he said. “Making campuses havens for sexual predators will be Eli Capilouto's defining legacy, and will stain the University of Kentucky's reputation for many years to come.”

SPLC staff writer Conner Mitchell can be reached by email or (202) 974-6318

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