A legal victory for the student press in Kentucky’s ongoing battle for open records

KENTUCKY — A circuit court judge ruled Oct. 13 that the state Attorney General has the right to privately review public records on sexual assault at Kentucky State University to determine whether the school is required to release them to student reporters. KSU has argued it can’t release the records because of federal privacy law.

The decision is the latest update to an ongoing legal battle being waged by the Kentucky Kernel, the student newspaper of the University of Kentucky, and other college newspapers in the state.

Here’s a timeline of events:

The saga began in 2016 when the Kernel requested documents from the University of Kentucky relating to a professor accused of sexual harassment. When the university refused to release most of the those documents, citing the Federal Educational Rights and Privacy Act, the paper appealed to the state’s Attorney General.

Kentucky’s Open Records Act states that the Attorney General may conduct a private review of the requested documents to determine whether or not they should be released. However, the University of Kentucky refused to do so, arguing that releasing the documents—even to the Attorney General for a private review—would violate their obligation to protect student privacy under FERPA. As a federal law, FERPA supersedes the Kentucky Open Records Act anywhere they may be in conflict.

In August, the court ruled for the university; the Kernel is currently appealing the decision.

However, the Kernel also requested similar sexual assault records from seven other Kentucky universities. Some of the universities released the records, but others refused, opening up new fronts in the battle.

The Oct. 13 decision, issued by a different circuit court, pertains to one of those other fronts — Kentucky State University.

The case turned in large part on the question of whether sending the documents to the Attorney General constitutes a disclosure and is thus restricted by FERPA. Judge Thomas Wingate ruled that, because the Attorney General reviews the records in private, it did not.

From here, the university may decide to appeal, and the disputes may ultimately end up before the Kentucky Supreme Court.

The SPLC led a coalition of open-government groups to file an amicus curiae brief supporting the student journalists, and also awarded its 2017 College Press Freedom Award to the Kernel.

SPLC staff writer Samuel Breslow can be reached by email or at (202) 974-6318. He is on Twitter @sdkb42.

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