School Sues Student Paper Over Open Records

(CN) — The University of Kentucky sued its own independent student newspaper, challenging the state attorney general's mandate to disclose information about a sexual-assault investigation.

The school sued The Kernel Press Inc. dba The Kentucky Kernel in Fayette County Circuit Court on Wednesday, but it says "the legal reality is the university's dispute with the reasoning of the attorney general and not with the student newspaper."

Kentucky Attorney General Andy Beshear said in an August decision that the state's open-records law requires the university to disclose all details of its investigation into the alleged sexual assault of a student, aside from the student's name.

The University of Kentucky says it filed the lawsuit to appeal Beshear's decision.

"The mandate for total disclosure includes materials that are protected by federal privacy law because they would easily lead to the identification of victim/survivors, records that are preliminary in nature, and documents that are protected by the attorney-client or work-product privilege," the complaint states. "Moreover, while there are many responsibility media outlets that would never misuse this information, the decision is not limited to responsible media outlets; it applies equally to ill-intended requests from stalkers and prisoners."

The dispute stems from an April 7 records request filed by the Kentucky Kernel. The newspaper wanted all records detailing the investigation into allegations of sexual harassment and assault by former professor James Harwood.

The university denied the request, according to its lawsuit, because of privacy concerns, attorney-client and work-product privilege, and the preliminary nature of the investigation records.

The student paper appealed and Beshear issue his decision Aug. 1, finding that "the university must make immediate provision for the Kernel's inspection and copying of dispute records with the exception of the names and personal identifiers of the complainant and witnesses," the school's complaint states.

The University of Kentucky says Beshear's decision is "contrary to both state and federal law."

"For example, the United States Department of Education has declared schools may not share information protected by [the Family Educational Rights and Privacy Act, or FERPA] with a state attorney general as part of an open records dispute," the Aug. 31 lawsuit states.

The school also says the Kentucky Open Records Act exempts preliminary materials from disclosure, and inspection of attorney-client privileged documents is limited "to judicial officers in extraordinary circumstances."

"To be sure, the public has a right to access and understand the workings of the university, but university also has an obligation to protect the privacy of victims/survivors and those who may be wrongly accused," the complaint states. "The Legislature — the people's democratically elected agents — recognized this when enacting the Kentucky Open Records Act."

The university claims Beshear's decision "has a chilling effect on whether victims/survivors will report incident and undermines the university's ability to fulfill its obligations under both federal law and the Constitution."

"The implications go far beyond a student newspaper and these particular victims/survivors," the school's lawsuit states.

The University of Kentucky is represented by Stephen Barker of Sturgill, Turner, Barker & Moloney in Lexington, Ky.

Tom Miller, attorney for the Kentucky Kernel, said the student newspaper will file an answer to the lawsuit next week, according to a Kernel report.

"I believe it is extraordinarily important for the Kernel to defend itself in this action because of the importance of the public getting full disclosure as to what occurred involving a university employee paid with public funds who allegedly abused his position with students," Miller said. "It's necessary to get full disclosure for the protection of all students and for the public to know how the university undertakes to protect its students."

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