The Kentucky Kernel’s open records battle has multiple fronts

KENTUCKY—The Kentucky Kernel’s strategy of requesting records from multiple state universities seems to be paying off, if rulings at Kentucky State University and Western Kentucky University this week are any indication.

Kentucky Attorney General Andy Beshear has ruled that both KSU and WKU broke open records law in refusing to release documents related to Title IX investigations of faculty members. Both the Kernel and the College Heights Herald, WKU’s student newspaper, had requested the documents.

Marjorie Kirk, the Kernel’s editor in chief, said the paper had submitted these requests to a number of schools in the state to gain a better idea of how each university handles these issues.

The AG’s ruling came after a judge in Lexington came down against the Kernel last week.

The requests to the other universities were sent after the University of Kentucky made it clear they would not be providing the documents the Kernel was seeking.

“On October 18, 2016 we requested all documents pertaining to sexual misconduct investigations of employees at Kentucky State University, Morehead State University, Eastern Kentucky University, Murray State University, Northern Kentucky University, University of Louisville and Western Kentucky University,” Kirk said in an email.

Opening up more flanks in the open records fight could also influence the Kernel’s appeal to a higher court in their current litigation with the UK. If WKU releases the records to the Kernel, it could put a dent in UK’s argument that records of the same kind are confidential and can’t be released. If WKU stands its ground and sues, it could be mired in the same battle UK has engaged in.

KSU has stated its intent to sue to challenge the attorney general’s directive.

“The University believes that the decision rendered by Fayette Circuit Court Judge Thomas Clark in the recent case of University of Kentucky v. The Kernel Press, Inc., Case No. 16-CI-3229 (Fayette Cir. Ct., 8th Div., Jan. 23, 2017) is directly on point and must govern any analysis of the dispute in this case. The University will appeal the Attorney General’s decision,” KSU general counsel Gordon Rowe said.

As illustrated in the UK lawsuit, the only way for the university to appeal the decision is to sue the publication. The Kernel sought records from UK’s investigation of a former professor who had been accused of sexual misconduct and was allowed to resign.

UK provided documents of the professor’s settlement with the university, but withheld the investigation records, saying releasing them in any form “would force the university to turn over private information about victim survivors to anyone, including the media, other students, employers, and strangers.”

Beshear ruled UK stood in violation of open records law in August, and the university sued the Kernel, its own student newspaper, in order to appeal. The attorney general joined the case on the side of the Kernel. Later, two of the sexual assault survivors reportedly detailed in the documents the Kernel sought joined the case on the side of UK.

Baker Donelson, a Washington, D.C. based law firm which has represented UK in the past, is representing the victims pro bono. The ongoing case has also become a rallying point for open records and press freedom advocates.

WKU cited the ongoing UK situation in denying similar records to the Herald.

“I’m hoping that we have better luck with the KSU case. And if we do win that case or if we win the WKU case, the judge who is looking at our Court of Appeals case could be influenced, and that he could see that FERPA does not apply to these documents,” Kirk said.

WKU argues that the documents, if released, would compromise the privacy of the victims involved in the investigations, even if all personal details were redacted.

“Right now, we may ask the AG to reconsider given the opinion and order issued by the Fayette Circuit Court. We have until February 25 to decide on whether an appeal is necessary,” WKU general counsel Deborah Wilkins said in an e-mail.

SPLC staff writer James Hoyt can be reached by email or (202) 478-1926.

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