9:36:58:10-23-2020UKvsKernelSupremeCourt

Chief Justice John D. Minton Jr. listens to UK's lawyer during oral arguments heard by the Kentucky Supreme Court in UK's lawsuit against the Kernel on Friday, Oct. 23, 2020, at the Kentucky Supreme Court in Frankfort, Kentucky. Photo by Michael Clubb | Staff.

The Kentucky Supreme Court has ruled in favor of the Kentucky Kernel in an open records lawsuit from the University of Kentucky, upholding the ruling from Kentucky's Court of Appeals and ending a five-year legal battle.

The Kernel was sued by UK after the university declined to turn over records in a sexual misconduct case. The lawsuit proceeded with alternate rulings through district and appellate court, with the interpretation of Kentucky’s open records law at stake.

"We too find that the University failed to comply with its obligations under the ORA [Open Records Act] and that the trial court clearly erred in finding the entire investigative file exempt from disclosure," reads the affirming opinion from Supreme Court Justice Lisabeth Hughes in the ruling announced on Thursday, March 25.

The lawsuit revolved around a request from the Kernel for documents related to a sexual misconduct investigation against former UK professor of entomology James Harwood. Harwood resigned from the university in 2016 to avoid a sexual misconduct hearing and was later investigated for research misconduct. UK’s general counsel Bill Thro said at the time that the resignation was the most speedy and effective solution to both investigations.

The Kernel’s original request asked for “Title IX complaints filed by the two female students, any reprimands and any commendations, Harwood’s personnel file, and any documents detailing the University of Kentucky’s investigation into allegations of sexual assault, sexual harassment, or allegations of alcohol abuse committed by Harwood.”

Kentucky's Supreme Court heard oral arguments from the Kernel and UK in October of last fall. UK spokesperson Jay Blanton said the university "respectfully disagrees" with the court's ruling.

"We are confident that we will be able to make our case to the Circuit Court about what records must remain private to protect the privacy rights of our students," Blanton said.

Now, the issue will return to trial court for the dispensation of the records. UK must sort the entirety of the records, releasing the non-exempt files to the Kernel and providing justification under state privacy law for each record that it withholds – the same result as if the university had complied with the request in the beginning.

Chris Poore, media adviser to the Kernel when the lawsuit began, said the result was a great win for the public.

"Kernel students are adults and they're members of the public, and they're taxpayers, and they asked for records that by most accounts should have been public," Poore said.

Legal precedents.png

Understanding the ruling

The Kernel’s lawyer Tom Miller said the ruling was significant because the Supreme Court strongly condemned UK’s arguments in the opinion.

“It's very unusual to get an opinion of that length which includes language so critical of one of the party's actions,” Miller said.

The Supreme Court ruling upheld crucial legal precedents of Kentucky’s open records law, Miller said. The court’s opinion highlighted three important aspects of the open records law, denying UK exemptions under the preliminary and personal protection clauses of Kentucky’s open records law and affirming a new precedent in how the federal education privacy act, FERPA, is enacted in Kentucky.

“During the course of that investigation the public agency does not have to release any of its investigatory notes,” Miller said of the preliminary clause. “Now those notes, which the Supreme Court recognized, are no longer preliminary once there has been a final action on the employee.” Because Harwood resigned from the university, the documents were no longer preliminary and the Supreme Court ruled UK could not use that as justification for withholding them, despite the sexual assault investigation not being adjudicated at UK.

UK said they could not release the records because of the identity of the students who reported Harwood for sexual misconduct were included. But the Supreme Court recognized that the Kernel’s original request in 2016 asked for the students’ names and identifying information to be redacted.

“We both agreed on that point,” Miller said. “How the protection of the individuals was to be implemented was substantially disagreed on.”

Protecting the identity of the victims is a different matter than the identity of the accused, which in this case was former professor James Harwood, because “the interest in protecting that individual supersedes the public's right to know who that was,” Miller said.

Additional failures.png

During oral arguments in October, the justices pressed UK’s lawyers on public interest because of the potential for a professor investigated for sexual assault to move to another university without sanction.

"Realizing that Harwood could deny the allegations, leave the University quietly and seek academic employment elsewhere, Jane Doe 1 and Jane Doe 2 wanted to remedy a perceived flaw in the Title IX reporting and investigation process by drawing attention to the matter," the opinion states.

“The university took the position that the federal act prevented it from releasing any documents in the investigating file because a student name or two was included in that file. And the court agreed with us that that's a ridiculous interpretation,” Miller said.

Essentially, the Supreme Court said FERPA is not an absolute prohibition of sharing records as long as students’ information is redacted.

"The FERPA “education record” exclusion was clearly not intended as an “invisibility cloak” that can be used to shield any document that involves or is associated in some way with a student, the approach taken by the University in this case," the Supreme Court opinion said.

Miller said nearly all federal courts have made the same ruling, but it is the first direct ruling on FERPA in Kentucky.

“I personally feel that they just made up this defense using the FERPA so they didn't have to produce anything. For instance, and it's in the opinion, they refused to provide a camera manual to us, because it was in the file in the investigative file and using FERPA as the veil of secrecy meant they couldn't give us a single document from the file,” Miller said. “The Supreme Court just destroyed them on that.”

The first two aspects of the ruling are already written into the open records law in Kentucky, which is why Miller said UK’s position was “indefensible.”


Case history

UK sued the Kernel following an open records request filed by student journalists in 2016. The records in question and at the heart of the legal proceedings were related to sexual assault allegations against then-professor James Harwood.

"Students often expect there to be some kind of fight over records and transparency, but not something that goes on for this long and something that the university is willing to spend tens of thousands of dollars on taxpayer money on," Poore said. But if there is one thing that will fire up a student journalist, he said, it's being told no.

"They were essentially leading students to think that there must be a good, really important good story here, and that's definitely turned out to be the case," Poore said.

UK declined to turn over the records, citing FERPA, and sought judicial review.

Will Wright, the Kernel journalist that filed the initial records request, said he was excited and happy to see the court finally rule in the case - and on the right side, too.

"This is a big deal,” Wright said. "I think it shows that despite sometimes there being pushback from public entities like the University of Kentucky, that the court stands with having an open and accountable government."

UK first sued the Kernel after then-Attorney General Andy Beshear ordered the university to disclose the records.

"They essentially were saying trust us," Poore said. "No journalist, no citizen should have to have blind trust in government."

Fayette County Circuit Court initially ruled in favor of the university, but Kentucky's Court of Appeals found that UK failed its obligations under records and failed to justify the records' exemption from open records.

In its analysis, the Supreme Court opinion said that the crux of the issue was whether the entire file related to the Harwood investigation was exempt or not, as the file contained hundreds of pages of information.

"The University treated the Harwood Investigative File as if it were one giant record, unable to be separated or compartmentalized when in fact the investigative file is a 470-page collection of various types of records. Grouping all the documents together as one record to avoid production is patently unacceptable under the ORA," the opinion said.

During the October hearing, UK’s lawyers focused on student privacy concerns, especially the identity of the students involved and potential damage to their well-being if their names were to be released.

This point was refuted by the justices and the Kernel's representation, who acknowledged that the identities of the students were already known to the Kernel and had not been published in five years' worth of articles.

Additionally, Miller said it was unbecoming of the university to claim that the Kernel wanted the records to sensationalize the alleged sexual misconduct, as UK’s representation did at the Supreme Court hearing.

“The staff, which were mostly women, wanted disclose the identities of these sexual abuse victims, and had some kind of prurient interest in getting the documents that were requested, that was a really bad form,” Miller said.

The names were disclosed on one occasion, but by UK, not the student newspaper, when they were not redacted in papers distributed in a university Board of Trustees meeting.

Miller focused on precedents set in open records disputes, suggesting that privacy concerns could be solved by the redaction of the information rather than a complete denial.

The Supreme Court opinion ultimately said that though the university may find the Kernel's request "burdensome and intrusive," it was not up to the university to decide to disclose the records.

"Those decisions are ultimately for the courts within the parameters of the ORA, and to facilitate those decisions the University must first fulfill its obligations to the public under the statute and this Court’s ORA precedent," reads the conclusion of the unanimous ruling.

"The fact that it was unanimous, I think is really reassuring and sets a good precedent going forward, open records and for accountability at UK," Wright said.

Background and ramifications

WKU, EKU, NKU, Morehead State University, Murray State University, the University of Louisville and Kentucky State University all filed amicus curiae briefs to the court in support of UK's position.

The Kentucky Press Association, News Leaders Association, Reporters Committee for Freedom of the Press, Society of Professional Journalists and Student Press Law Center filed amicus curiae briefs in support of the Kernel's position.

Poore, who was media adviser to the Kentucky Kernel when the lawsuit began, thanked these organizations for their financial and moral support.

"Their support has been almost immeasurable," Poore said. He also thanked Tom Miller, the Kernel's lawyer.

"He's been doing this stuff for a long time but, but it's still quite a challenge to see a case that goes on for five years all the way through," Poore said. When the lawsuit first began, Poore said no one at the Kernel imagined it would go on for five years.

10:00:07:10-23-2020UKvsKernelSupremeCourt

The Kernel's lawyer is reflected in a plexiglass shield during oral arguments heard by the Kentucky Supreme Court in UK's lawsuit against the Kernel on Friday, Oct. 23, 2020, at the Kentucky Supreme Court in Frankfort, Kentucky. Photo by Michael Clubb | Staff.

Poore credited the Kernel's student journalists, who persevered with legal proceedings through five years of staff turnover, with the resolve necessary to pursue the records.

"Every year was a brand-new editor who had to dig in and figure this case out," Poore said. "We've had generations now of student journalists who have worked on this and realized and treated it like it was important. So, I'm just really proud of our students over the years."

Wright, the 2015 - 2016 Kernel editor-in-chief and current reporter for the New York Times, said he never expected his request to lead to the Kentucky Supreme Court.

"The way that every staff has made it our mission to keep this fight going shows just how important the issue was," Wright said. "And then every student knew that having open records at the university to talk to you was an important thing and would be for the next class and the next class and the next class."

Marjorie Kirk, Kernel editor-in-chief 2016 - 2017, wrote many of the articles on the Harwood investigation and the lawsuit's beginnings. Kirk said she can still remember the "hundreds of moments" she was tested by this records battle.

"The extreme care my staff and I put into every investigation and report of these sensitive events. The panic when the administration attempted to intimidate us (including Eli Capilouto accusing me of horrible insensitivity and recklessness). The awe and referred pain when I'd sit with survivors in my dim dirty office and ask them to relive the worst moments of their lives," Kirk said.

Kirk has now graduated from law school, but still recalls how significant the open records battle has been to her and other student journalists.

"It changed me, it changed every staff member who has come and gone in the last five years and now this decision is going to change the transparency of public colleges - hopefully - across the country," Kirk said.

Following the result of the court's ruling in the UK vs. Kernel case, Western Kentucky University will release records from a similar request to its independent student newspaper the College Heights Herald. WKU and the Herald have been locked in their own lawsuit for four years.

Miller said WKU’s decision in the suit with the Herald bodes well for the Kernel’s own lawsuit with WKU, which is of a similar nature to both the Herald vs. WKU and Kernel vs. UK cases and involves sexual assault records.

“Absolutely, because that was virtually the sole impediment to the circuit judge releasing records,” Miller said of the Supreme Court precedent being a positive indication for the WKU case.

Beyond the immediate ramifications for the records in the Kernel's case, the ruling also upholds Kentucky's Open Records Act in a time when open records laws across the country are in danger.

“It's quite obvious it's under attack in the legislature, and there are innumerable examples of local government trying to conceal actions from the public,” Miller said. “And if this decision had gone the wrong way, it would give further ammunition to local governments and educational institutions to hide its actions, to the very people who support these activities.”

Open records are a "crucial part of keeping the public informed," of journalism and of democracy, Wright said, so the Kernel's victory is a victory for citizens and for journalists.