Delays and redactions: The legal battle for sexual misconduct records in Kentucky just won’t end

In late July 2021, The College Heights Herald at Western Kentucky University (WKU) made progress in a longstanding legal battle with the university for the release of employee sexual misconduct records. Four years after the Herald’s initial records request, the college turned over documents related to 39 sexual misconduct investigations from the past decade. The documents they received were heavily redacted, “Seriously over-redacted,” according to Michael Abate, the Herald’s attorney. 

“I think this is a win, but just one small step toward a bigger win,” Editor in Chief Lily Burris said in an email to SPLC. “Getting the files at all shows we’ve always been on the right track, but the redactions indicate there’s still a ways to go before we can call this a total win.”

The Herald states in their story published September 20, “The Herald is in the process of disputing those redactions and may ask the courts to resolve the dispute.”

Earlier this year, the University of Kentucky was forced by the Kentucky Supreme Court to turn over sexual misconduct records to student journalists at the Kentucky Kernel. In both instances, the universities claimed the Family Educational Rights and Privacy Act prevented them from fulfilling an open records request. Burris believes the court’s ruling in favor of the Kernel strengthened their argument and could lead to more progress in their case even if it comes slowly.

Burris was in high school when The Herald’s investigation began in 2016. She said each generation of Herald student journalists saw how important it was to not let this investigation go away. She graduates in December and while she hopes the case will be resolved by the end of the semester, she’s not optimistic. Burris said it’ll likely be up to future editors to decide whether to publish the properly redacted versions of the documents if and when they come.

“When I explain this situation to our younger staffers, I try to point out how it is a good thing we have the records in their current state,” Burris explained, “but there’s still more work to go.”
WKU’s lawsuit against The Herald is ongoing.

4/10/2018 Western Kentucky University sued their student paper. Attorneys on both sides are now arguing their cases.

Update: On Apr. 6, attorneys representing Western Kentucky University and the College Heights Herald made oral arguments to the Warren Circuit Court in a lawsuit regarding the release of 20 records pertaining to university staff and faculty sexual misconduct.

Herald attorney Michael Abate argued to Judge Steve Wilson that redacted versions of the sexual misconduct records the newspaper requested are not subject to the Family Education Rights and Privacy Act (FERPA), which protects the privacy rights of students.

“I think it’s really shameful the university is citing a student privacy law as grounds for withholding information about faculty and staff members who may well be a real danger to students,” Abate said.

WKU attorney Ena Demir is arguing the redacted records are subject to FERPA. She was happy with how the oral arguments proceeded.

“I think we did an excellent job in proving our point that FERPA does apply here,” Demir said in an interview with The Herald. “These Title IX investigative records are educational records under FERPA, and therefore, they’re protected from disclose to the Herald, the [Kentucky] Kernel and even the AG.”

The Student Press Law Center advocated on behalf of The Herald by facilitating and encouraging donations to the paper’s legal defense fund, which raised about $7,000.

Abate estimated that Judge Wilson will make a decision within a month whether to hand over the redacted documents to state Attorney General Andy Beshear. Beshear would then determine whether WKU should give the documents to The Herald.

The Kentucky Kernel—which is embroiled in a similar lawsuit—is a defendant in the case along with the Herald.

02/28/17 Western Kentucky University sues the College Heights Herald

KENTUCKY—Following in the footsteps of the University of Kentucky, Western Kentucky University on Monday sued its student newspaper, the College Heights Herald, over access to records detailing faculty sexual misconduct investigations.

Both the Herald and the Kentucky Kernel are listed as defendants in the suit, which seeks to overturn a January decision by Kentucky Attorney General Andy Beshear that Western Kentucky University violated the state Open Records Act in not releasing requested investigations to both publications.

Per Kentucky law, parties that appeal a decision by the Attorney General must file litigation against the organization that requested the records, rather than the Attorney General’s Office. Both Western Kentucky University and the University of Kentucky have said their complaints are not directly with their student newspapers, but rather with Beshear’s decision.

The Kernel initially requested “all investigative records from all Title IX investigations into sexual misconduct allegations levied against university employees in the past five years” from Western Kentucky as part of an investigation into how Kentucky universities handle transparency in staff misconduct cases.

Western Kentucky in its response to the Kernel said it had conducted 20 investigations since 2013. Six of the 20 investigations found a violation of university policy, and all six employees resigned prior to any university action, according to the lawsuit.

Despite revealing the number of investigations, however, the university declined to release any documents to the Kernel, citing two provisions in the state Open Records Act that exempt preliminary notes and documents in such investigations from public records laws. The Kernel appealed the denial to Beshear’s office in November.

Western Kentucky responded later in the month, again citing the open records exemptions, but added that producing the records would violate personal privacy and federal law in addition to stifling future reporting of sex and gender discrimination. On Nov. 29, Beshear’s office requested that Western Kentucky produce all documents for an “in camera” or private inspection. Western Kentucky refused, saying even sharing the records with the attorney general for inspection would violate the Family Educational Rights and Privacy Act.

The Herald filed a nearly identical records request in November concurrent to the Kernel’s request, to which Western Kentucky responded as it did to the Kernel’s request. Beshear’s office again requested the university produce the documents at issue for an “in camera” review, and the university again declined, citing FERPA.

In a Jan. 26 decision, Beshear’s office found that Western Kentucky University did not meet its burden of proof in denying both the Kernel and the Herald’s requests. He ordered the university to make immediate provisions to inspect and copy the requested records with personally identifiable information redacted.

The lawsuit asks for a reversal of the Attorney General’s decision saying Western Kentucky University violated the state Open Records Act. It also seeks a determination that the university, acted in good faith regarding its compliance with the requests; the practical effect of that finding would be to deprive the requesters of their ability to recoup attorney fees.

Herald editor-in-chief Lashana Harney said in a statement to the SPLC that the case is key in addressing transparency on college campuses.

“The College Heights Herald firmly believes in the importance of this case,” she said. “We will continue to push for transparency and accountability, as is our responsibility, in this matter, and in the work we do every day.”

In an emailed statement to the SPLC, Beshear said his office’s decision is important in terms of promoting both transparency and safety regarding sexual misconduct on college campuses in the state.

“Sexual assault on college campuses is one of the greatest threats facing our young Kentuckians. The choice of some universities to hide every aspect of how they investigate such crimes does not make our children safer,” he said. “A university can protect the identity of any students involved, while at the same time embracing the type of transparency where parents can truly evaluate how safe a campus actually is.”

In a parallel legal dispute with the Kernel, the University of Kentucky obtained a trial-court ruling in January accepting the categorization of employee-misconduct records as confidential under FERPA. That ruling, which is being appealed, is not binding on Western Kentucky, however.

SPLC staff writer Conner Mitchell can be reached by email or (202) 974-6318

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