By Mary Tyler March
Writer, Student Press Law Center
This article was originally published Sept. 2, 2016
The University of Kentucky filed a lawsuit against its student newspaper in late August to appeal the state attorney general’s opinion that found the university violated the state’s Open Records Act.
The lawsuit follows a battle between the independent student newspaper, the Kentucky Kernel, and UK that began when then editor-in-chief Will Wright requested documents that detailed an investigation into multiple complaints of sexual misconduct toward students by former associate professor James Harwood.
The university gave the Kernel Harwood’s settlement documents, but did not provide them with the full investigation or mention that the accusations including sexual battery as well as verbal harassment. After the university declined to release the full records, citing privacy concerns, the paper appealed to Attorney General Andy Beshear’s office for an opinion.
Beshear’s office released the opinion on Aug. 8, finding fault with the university, and prompting UK President Eli Capilouto to send a campus-wide email threatening to sue the Kernel. In the email, Capilouto cited the confidentiality and privacy of the victims as the reason for sealing the documents. Capilouto called the investigation “preliminary,” and therefore not open to public record laws.
In the opinion, Beshear stated that the university had refused to release the documents to the attorney general’s office for review and ruled that the university must release the records – with names and identifiers of the witnesses redacted – because the records were not protected under any exemptions to the open records law.
The lawsuit claims that Beshear erred in ordering disclosure of the records about UK’s investigation because the documents are protected from disclosure as “education records” under the federal Family Educational Rights and Privacy Act, because they are “preliminary” and do not represent the final outcome of the investigation, and because they contain attorney-client privileged material.
In a statement issued with the lawsuit, Jay Blanton, UK’s executive director of Public Relations and Marketing, said, “Our argument is not with The Kentucky Kernel. Respectfully, it is with an opinion from the Office of Attorney General that, if allowed to stand, would force the university to turn over private information about victim survivors to anyone, including the media, other students, employers, and strangers.”
Shortly after the attorney general’s decision and UK’s announcement of the suit, a 122-page investigation document, with the victims’ names and identifiers redacted, was handed over to the Kernel by an anonymous source related to the case. University officials would not confirm the authenticity of the documents acquired by the Kernel, but the newspaper reported that the report was signed by the university’s deputy Title IX coordinator, Martha Alexander.
The Kernel, which has been in contact with the victims’ spokesperson since they were first approached in March, reported that the victims wanted the documents to be public, with names and identifiers redacted. The spokesperson, the Kernel reported, said the victims were not contacted before Capilouto’s email was sent – they only heard about it when they later saw an article about it.
According to a statement from Capilouto, the university fully complies with 90 percent of open records requests, but in a small minority of cases, they feel they must deny the requests.
“But in a handful of very specific cases, we are faced with the decision of whether transparency is more important than the need to protect the privacy and dignity of individual members of our community. It is not,” Capilouto said in the statement.
UK will never release the names of victims of violence, not only for the safety of victims that are named in the documents, but also so victims who have not yet come forward will feel comfortable doing so, he said.
But, according to the Kernel’s policy, the paper does not identify victims of sexual assault without their permission.
The investigation concluded that there was enough evidence to present Harwood’s case to the Sexual Misconduct Hearing Board, a university board appointed by the president that adjudicates complaints against employees. The investigator also recommended that Harwood be terminated and his tenure as a faculty member be revoked.
But before the case could reach a hearing, Harwood tendered his resignation in February under a provision in his university employment agreement. Because his resignation precluded a hearing, the victims who filed complaints against Harwood will not be able to appeal the decision, and the investigation will not be disclosed if he applies for a job elsewhere.
Harwood remained employed by UK with full pay and benefits until Aug. 31.
Note from the editor:
This story was authorized for reprint by the Student Press Law Center under creative commons usage. According to splc. org, “The Student Press Law Center is an advocate for student First Amendment rights, for freedom of online speech, and for open government on campus. The SPLC provides infor- mation, training and legal assistance at no charge to student journalists and the educators who work with them.”
“Since 1974, the Student Press Law Center has been the na- tion’s only legal assistance agency devoted exclusively to edu- cating high school and college journalists about the rights and responsibilities embodied in the First Amendment and sup- porting the student news media in their struggle to cover im- portant issues free from censorship. The SPLC provides free legal advice and information as well as low-cost educational materials for student journalists on a wide variety of topics. In addition, the SPLC operates a formal Attorney Referral Net- work of approximately 150 lawyers across the country who are available to provide free legal representation to local students when necessary. Approximately 2,500 student journalists, teachers and others contact the SPLC each year from all 50 states and the District of Columbia.”