If you can't beat 'em, sue 'em

In Kentucky and Florida, two universities seem to be exhausting all options to keep public records from their student papers – including suing their students.

While college journalists often struggle against obstruction by secretive institutions resistant to news coverage, the tactics employed in recent cases appear to signal a more assertive posture by colleges, using the legal process as an offensive, rather than purely defensive, weapon.

Knight News, an independent student news website at the University of Central Florida, has been forced to sue the University of Central Florida three times in the past three years for access to records and meetings. In response, UCF has repeatedly asked the courts to force the student-run outlet to pay the university’s legal bills – an unusual move, since public-records laws generally provide compensation only to the requester, not to the government agency.

More recently, the University of Kentucky filed a lawsuit against its student paper, the Kentucky Kernel, over an unfavorable decision by the state’s attorney general regarding a records request. This action came in response to the paper’s request for documents relating to the firing of a professor accused of sexual assault.

These instances are noteworthy for the aggressive stands that public institutions have taken against their student media, stands that place the financial security of those news organizations at risk. In each instance, the universities claim to be protecting privacy interests, while journalists suspect that the real agenda is to frustrate news coverage.

Ain’t No Sunshine in the Sunshine State

On April 7, the Student Government Association at UCF, a campus of more than 60,000 students located in Orlando, passed an $18.6 million budget in a meeting closed to public comment.

This followed an incident in December where the SGA held committee meetings on the allocation of the Activities and Services Fee during the time the campus was closed for winter break. Students at UCF are not allowed to stay in the dorms over the holiday, and anyone wishing to attend the meeting would have had to arrange for alternate accommodations.

Knight News asked to inspect copies of SGA budget requests along with an electronic copy of the A&S Fee financial database. The requests for budget documents went unanswered for more than a month, and the news outlet filed a lawsuit against the university on May 23 requesting the release of the documents and a permanent injunction to require SGA to allow public comment.

In response to the lawsuit, the university released a heavily redacted version of the documents June 3, including removing student names, citing the Family Educational Rights and Privacy Act, which protects students’ education records.

Michael Williams, a government reporter for Knight News, said reporters’ ability to cover the news was compromised by the redactions.

The university didn’t stop at withholding the documents under FERPA. They claimed that the lawsuit was so baseless that Knight News should pay UCF’s legal fees – an unorthodox move, as the normal practice in Florida open-government lawsuits is that only the requester is entitled to recover attorney fees.

“If we had to pay attorney’s fees it would cripple us,” Williams said. “We’re not a money-making machine. We’re not The New York Times. We are student-run, independent publication.”

Knight News is a 501(c)(3) nonprofit launched in 2009. Students run the newsroom and do all the reporting, but the website is neither affiliated with nor funded by the university.

This summer, the campus’s only official student newspaper, the Central Florida Futureclosed after 48 years.

UCF argues that Knight News’ request for the documents is “meritless,” and therefore the journalists and their attorney should be responsible for the financial resources the university must expend to fight the case.

Knight News is represented by Justin Hemlepp, a local attorney who is also representing the news outlet in two other cases against the university, both also for noncompliance with open records and open meetings laws.

In refusing to release the documents, the university is concealing the use of government funds, Hemlepp said. Not only is their legal position indefensible, but he also finds it “preposterous” that a university would ask for attorney’s fees from a student paper.

“What this is really about is a university spending $250,000 in taxpayer money in asserting the ridiculous ideas that budget records are private and that student government can spend taxpayer money in secret,” Hemlepp said.

Hemlepp said the budget documents and database records are necessary to report on how SGA will allocate its $18.6 million budget. Hemlepp argues that UCF’s FERPA defense has no legal basis, as the budget documents are not educational records and the students waived their claim to privacy in taking an SGA position.

A Ray of Hope

On August 11, the Ninth Florida Judicial Circuit Court ordered the university to release the documents to the paper within 48 hours, without redactions, and denied the university’s request for attorney’s fees.

The ruling was consistent with Hemlepp’s position, with Judge John Jordan deciding that budget documents are not educational records, and that SGA participants implicitly waive their right to privacy with relation to their participation in governmental activities.

The university filed a stay to the ruling almost immediately, following it up with an appeal on August 22.

In previous years, UCF has released these records without a fight, and neither the student journalists nor the lawyer can determine why releasing in this instance has become such an issue.

“This information is and always has been public and for reasons I cannot understand, UCF has engaged in creative interpretation of what these rules mean,” Hemlepp said.

If the court had ruled that the paper would be responsible for the fees, Hemlepp said it could have easily bankrupted the independent student news outlet.

Brigitte Snedeker, the editor-in-chief of Knight News, said it is unfortunate their university is willing to seek the destruction of a news outlet where students learn journalism.

“In my mind [seeking attorney’s fees] is aggressive behavior because the university knows how small we are,” Snedeker said.

Not only is the lawsuit using the financial resources of the site and taking time away from other reporting, Williams said the Knight News’s persistence in getting the records is causing students to feel that the news organization is antagonistic.

“It’s leading students to believe that we’re one-sided or that we’re only going after SGA because we have some kind of grievance with them,” he said.

And even if or when the records become available, the delay is still costly because of the loss of timely coverage about SGA spending, Williams said.

“We would prefer to have gotten them as soon as possible so students would have been more aware of what was happening in the university community as it was happening and not months after the fact,” he said.

A Kernel of Truth

In Kentucky, student reporters are also defending their right to access public records against the University of Kentucky. On August 8, the university announced its decision to sue the Kentucky Kernel, the independent student newspaper, over their open records request.

On August 31, they made good on that threat.

The lawsuit comes in response to an opinion by Attorney General Andy Beshear’s office stating that the university had violated the state’s Open Records Act by withholding records concerning a former associate professor’s sexual misconduct case from the Kernel.

The day the complaint was filed, the university posted a statement to Twitter asserting that the lawsuit was necessary to protect those who report harassment under a promise of confidentiality: “We appealed the Office of AG’s opinion to protect the rights of victim-survivors – today and those that follow.”

Because of the way Kentucky’s law is structured, a lawsuit is the only way for the university to appeal the attorney general’s decision.

The issue began in April, when then editor-in-chief Will Wright requested documents detailing the university’s investigation and subsequent dispensation into sexual harassment and assault complaints against former associate professor James Harwood.

The university did release documents that showed the final agreement between administrators and the accused professor, and the paper was able to report that the university entered into an agreement with Harwood allowing him to resign his position and continue to receive pay and benefits until he resigned Aug. 31.

But Wright said there were still major gaps in the coverage because reporters knew almost nothing else about the case without the remaining documents UK withheld.

The documents the newspaper did receive were basically a conclusion of the case with few details, leaving journalists unable to confirm what actually took place, Marjorie Kirk, the Kernel’s current editor-in-chief said.

After the university declined to release additional records detailing their investigation, citing privacy concerns, the paper appealed to Beshear’s office for an opinion. Beshear’s office issued a memorandum on August 8, stating that the university had refused to release the documents to the attorney general’s office for review and ruling the university must release the records – with names and identifiers of the witnesses redacted – as they were not proven to be protected under any exemptions to the open records law.

Beshear’s decision prompted 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 though the case is closed.

But, according to 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.

And for Tom Miller, the attorney representing the Kernel in the suit, the university’s claim for protecting the victims’ privacy doesn’t hold up.

“With the redaction of the names and of any identifying information, the students are not identifiable — therefore there is no privacy right being protected here,” Miller said. “The victims have reported to the Kernel that they want the documents’ information disclosed. To the extent the university is claiming that privacy is an interest, let [the university] go ask the victims – who they never talked to, according to the Kernel – and let them say if they want their rights protected.”

Out of the shadows

Shortly after Beshear’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 a 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.

UK’s lawsuit claims that Beshear erred in ordering disclosure of the records about UK’s investigation because the documents are protected from disclosure for three reasons: because they are confidential “education records” under FERPA, 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 & 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.”

Blanton stated concerns about a possible chilling effect on the trust students and others on campus might have in the university and their willingness to report crimes of a similar nature were the attorney general’s decision to stand up in court.

“The decision of the Attorney General, if it stands, would mean confidential and private information relative to a survivor wouldn’t just have to be turned over to the Kernel or another newspaper. It would have to be turned over to a private citizen, fellow student or faculty or staff member. There would be no discretion,” he said in an email.

But, according to the report, the case’s complainants came forward only after finding there were other victims.

The Kernel’s advisor, Chris Poore, said the students’ appeal to the AG followed a common course of action – one that would elicit a decision backed by the force of law.

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.

The university 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 that victims who have not yet come forward will feel comfortable doing so, he said.

However, it is the policy of the Kernel – and most newsrooms – to not print victims’ names, and the AG’s decision specified that the names and possible identifiers for the victims must be redacted from the documents.

But for Miller, who is fielding two other cases involving the university and its noncompliance with open records laws, UK might be toeing a thin legal line.

“This is just a pattern of conduct the university has recently displayed by just refusing to comply with the Open Records Act,” he said.

For Kirk, as the Kernel moves on in its legal proceedings and coverage of the new school year, she hopes the case could provide a stepping stone to amending policies that might undermine student safety nationally.

Because of a provision in his employment agreement with the university, Harwood was able to tender his resignation and forego a hearing – a policy that is recognized as a permissible resolution in federal Title IX guidelines. And 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.

“I would hope that instead of the legacy of this year being the year our university decided to sue our student newspaper, rather it would be the year our university was the first to take a stand against broken policies all over the country,” Kirk said.

A Troubling Trend

The unusually forceful resistance that journalists are encountering at UCF and UK has raised concerns that universities, which have a well-documented history of overusing federal privacy laws to obstruct public-records requests, are escalating from “uncooperative” to “openly defiant.”

While universities fighting newspapers over the release of public documents is not uncommon, the incidents normally end in threats and do not escalate to a university suing its student paper or requesting attorney’s fees, said Gideon Grudo, head of the freedom-of-information committee for the Society of Professional Journalists.

This behavior from universities is “childish”, he said, and often hypocritical.

“You can’t teach with one hand and punish those seeking truth with the other,” Grudo said.

While UCF stands by its argument that the public records lawsuits by Knight News are outrageous enough to warrant financial sanctions, the University of Kentucky is quick to dispel any perception of antagonism against the Kernel, pointing to the mechanics of Kentucky law that offer no alternative recourse but to initiate a court case.

But David Cuillier, the director of the University of Arizona’s journalism school, said although suing is the only way to appeal the decision, the university actually had more than one course of action.

“Clearly the best avenue for them is to be transparent and follow the law,” he said. Appealing the attorney general’s opinion and denying the release of records concerning a professor accused of sexual assault will not “build trust in their institution,” Cuillier said.

This type of action by universities can discourage people from filing requests, Cuillier added, and he finds it appalling that a university would take their own student paper to court over a request.

“I think it’s very chilling. Just for asking to see information you have to hire a lawyer and defend yourself in court,” he said.

Wright, who still works at the Kernel, said he does not think the lawsuit will affect the newspaper’s coverage or deter future public records requests, although he does think it could have a chilling effect on the public or other journalists.

Editor-in-Chief Kirk suspects the UK’s refusal to release the records, which the university maintains is for privacy concerns, is really about preserving the reputation of the school.

“Under the guise of protecting victims, it seems like they are actually protecting the image of the university,” she said.

Because the attorney general previously ruled in their favor and other sources Wright has talked to have said the documents are public, he said he believes the court will rule in their favor.

Grudo said he hopes the student journalists involved in these cases learn lessons from them and use their experiences fighting for access to public documents to their advantage.

“There are worse ways to answer a [journalism job] interview than ‘Yeah, this one time, my [university] sued my paper because we wanted public records’.” Grudo said.

This story includes reporting by SPLC Staff Writer Mary Tyler March.

SPLC Publications Fellow Evelyn Andrews can be reached by email or (202) 974-6317.

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