Chief Justice John D. Minton Jr. listens to UK’s lawyer during oral arguments heard by the Kentucky Supreme Court in UK’s lawsuit against the Kernel on Friday, Oct. 23, 2020, at the Kentucky Supreme Court in Frankfort, Kentucky. Photo by Michael Clubb, Kentucky Kernel Staff
By Natalie Parks, The Kentucky Kernel
The Kentucky Supreme Court has ruled in favor of the Kernel in an opens records lawsuit from the University of Kentucky, upholding the ruling from Kentucky’s Court of Appeals and ending a five-year legal battle.
“We too find that the University failed to comply with its obligations under the ORA [Open Records Act] and that the trial court clearly erred in finding the entire investigative file exempt from disclosure,” reads the affirming opinion from Supreme Court Justice Lisabeth Hughes.
UK spokesperson Jay Blanton said the university “respectfully disagrees” with the court’s ruling.
“We are confident that we will be able to make our case to the Circuit Court about what records must remain private to protect the privacy rights of our students,” Blanton said.
Kentucky’s Supreme Court heard oral arguments from the Kernel and UK in October of last fall. Now, the issue will return to trial court for the dispensation of the records. UK must sort the entirety of the records, releasing the non-exempt files to the Kernel and providing justification under state privacy law for each record that it withholds.
Chris Poore, media adviser to the Kernel when the lawsuit began, said the result was a great win for the public.
“Kernel students are adults and they’re members of the public, and they’re taxpayers, and they asked for records that by most accounts should have been public,” Poore said.
UK sued the Kernel following an open records request filed by student journalists in 2016. The records in question and at the heart of the legal proceedings were related to sexual assault allegations against then-professor James Harwood.
UK declined to turn over the records, citing FERPA, and sought judicial review.
“The FERPA “education record” exclusion was clearly not intended as an “invisibility cloak” that can be used to shield any document that involves or is associated in some way with a student, the approach taken by the University in this case,” the Supreme Court opinion said.
Will Wright, the Kernel journalist that filed the initial records request, said he was excited and happy to see the court finally rule in the case – and on the right side, too.
“This is a big deal, Wright said. “I think it shows that despite sometimes there being pushback from public entities like the University of Kentucky, that the court stands with having an open and accountable government.”
UK first sued the Kernel after then-attorney general Andy Beshear ordered the university to disclose the records.
“They essentially were saying trust us,” Poore said. “No journalist no citizen should have to have blind trust in government.”
Fayette County Circuit Court initially ruled in favor of the university, but Kentucky’s Court of Appeals found that UK failed its obligations under records and failed to justify the records’ exemption from open records.
In its analysis, the Supreme Court opinion said that the crux of the issue was whether the entire file related to the Harwood investigation was exempt or not, as the file contained hundreds of pages of information.
“The University treated the Harwood Investigative File as if it were one giant record, unable to be separated or compartmentalized when in fact the investigative file is a 470-page collection of various types of records. Grouping all the documents together as one record to avoid production is patently unacceptable under the ORA,” the opinion said.
During the October hearing, UK’s lawyers focused on student privacy concerns, especially the identity of the students involved and potential damage to their well-being if their names were to be released.
This point was refuted by the justices and the Kernel’s representation, who acknowledged that the identities of the students were already known to the Kernel and had not been published in five years’ worth of articles.
The Kernel’s lawyer Tom Miller focused on precedents set in open records disputes, suggesting that privacy concerns could be solved by the redaction of the information rather than a complete denial.
The Supreme Court opinion ultimately said that though the university may find the Kernel’s request “burdensome and intrusive”, it was not up to the university to decide to disclose the records.
“Those decisions are ultimately for the courts within the parameters of the ORA, and to facilitate those decisions the University must first fulfill its obligations to the public under the statute and this Court’s ORA precedent,” reads the conclusion of the unanimous ruling.
“The fact that it was unanimous, I think is really reassuring and sets a good precedent going forward, open records and for accountability that UK,” Wright said.
WKU, EKU, NKU, Morehead State University, Murray State University, the University of Louisville and Kentucky State University all filed amicus curiae briefs to the court in support of UK’s position.
The Kentucky Press Association, News Leaders Association, Reporters Committee for Freedom of the Press, Society of Professional Journalists and Student Press Law Center filed amicus curiae briefs in support of the Kernel’s position.
Chris Poore, who was media adviser to the Kentucky Kernel when the lawsuit began, thanked these organizations for their financial and moral support.
“Their support has been almost immeasurable,” Poore said. He also thanked Tom Miller, the Kernel’s lawyer.
“He’s been doing this stuff for a long time but, but it’s still quite a challenge to see a case that goes on for five years all the way through,” Poore said. When the lawsuit first began, Poore said no one at the Kernel imagined it would go on for five years.
Poore credited the Kernel’s student journalists, who persevered with legal proceedings through five years of staff turnover, with the resolve necessary to pursue the records.
“Every year was a brand new editor who had to dig in and figure this case out,” Poore said. “We’ve had generations now of student journalists who have worked on this and realized and and treated it like it was important. So, I’m just really proud of our students over the years.”
Wright, the 2015 – 2016 Kernel editor-in-chief and current reporter for the New York Times, said he never expected his request to lead to the Kentucky Supreme Court.
“The way that every staff has made it our mission to keep this fight going shows just how important the issue was,” Wright said. “And then every student knew that having open records at the university to talk to you was an important thing and would be for the next class and the next class and the next class.”
Marjorie Kirk, Kernel editor-in-chief 2016 – 2017, wrote many of the articles on the Harwood investigation and the lawsuit’s beginnings. Kirk said she can still remember the “hundreds of moments” she was tested by this records battle.
“The extreme care my staff and I put into every investigation and report of these sensitive events. The panic when the administration attempted to intimidate us (including Eli Capilouto accusing me of horrible insensitivity and recklessness). Yhe awe and referred pain when I’d sit with survivors in my dim dirty office and ask them to relive the worst moments of their lives,” Kirk said.
Kirk has now graduated from law school, but still recalls how significant the open records battle has been to her and other student journalists.
“It changed me, it changed every staff member who has come and gone in the last five yearss and now this decision is going to change the transparency of public colleges – hopefully – across the country,” Kirk said.
Following the result of the court’s ruling in the UK vs. Kernel case, Western Kentucky University will release records from a similar request to its independent student newspaper the College Heights Herald. WKU and the Herald have been locked in their own lawsuit for four years.
Beyond the immediate ramifications for the records in the Kernel’s case, the ruling also upholds Kentucky’s Open Records Act in a time when open records laws across the country are under attack. Open records are a “crucial part of keeping the public informed”, of journalism and of democracy, Wright said, so the Kernel’s victory is a victory for citizens and for journalists.
“Students often expect there to be some kind of fight over records and transparency, but not something that goes on for this long and something that the university is willing to spend tens of thousands of dollars on taxpayer money on,” Poore said. But if there is one thing that will fire up a student journalist, he said, it’s being told no.
“They were essentially leading students to think that there must be a good, really important good story here, and that’s definitely turned out to be the case,” Poore said.