Court says FERPA forbids sharing UK harassment records with attorney general
KENTUCKY — The state attorney general will appeal a ruling from a circuit court’s determination that he does not have authority to review records the University of Kentucky has kept confidential following sexual harassment and sexual assault allegations.
The Aug. 9 decision by the Eighth Division Fayette Circuit Court is the latest in an ongoing legal dispute with State Attorney Andy Beshear springing from a case in which the university, citing privacy concerns, sued the student newspaper, the Kentucky Kernel.
Beshear issued a statement stating that the ruling “would deal a serious blow to public transparency, as well as the ability to hold universities accountable for how they respond to and investigate sexual assault by professors and administrators. The attorney general will appeal.”
Beshear was seeking to review university documents under the Open Records Act to determine whether they are covered by the Family Educational Rights And Privacy Act.
In 2016, the Kernel published stories about multiple student complaints of sexual harassment lodged against James Harwood, then an associate professor of entomology. The court on Jan. 23, 2017 sided with the university, which, citing privacy laws, provided the Kernel only with documents related to Harwood’s departure from the university. It would not release other requested documents.
The Kernel appealed to the state attorney general, who found fault with the university and ordered that all investigation documents be released, with the names of witnesses redacted.
Then, the court reversed Beshear’s decision, which led to an appeal.
The Aug. 9 ruling is a parallel but separate part of the dispute. It involves the attorney general’s authority to review university documents to decide whether they should be withheld under FERPA. The university refused to turn over the disputed records to Beshear, claiming that even sharing FERPA records with another state agency could put the university in violation of federal privacy law.
In its Aug. 9 ruling, the court determined that documents related to the case are education records covered by FERPA, and the federal law supersedes the authority of the state attorney general.
When Beshear files his appeal, the case will go to the Kentucky Court of Appeals.
SPLC staff writer Danielle Dieterich can be reached by email or (202) 833-4614.
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