State Supreme Court backs student reporters in UK FOI case

FRANKFORT, Ky. (AP) — Kentucky’s Supreme Court sided with a student newspaper Thursday in a long-running open records dispute with the state’s flagship university over the release of documents pertaining to a sexual misconduct investigation involving a former campus professor.

The University of Kentucky’s handling of the request for records from the Kentucky Kernel — the campus newspaper — was “patently unacceptable” under the state’s open records law, Deputy Chief Justice Lisabeth T. Hughes said in writing for the unanimous court.

“Kentucky citizens have a strong interest in ensuring that public institutions, including the university, respond appropriately to accusations of sexual harassment,” Hughes wrote.

Thomas Miller, the student newspaper’s lawyer, said he was thrilled that the student journalists who investigated the matter “for all the right reasons have finally been able to defeat the university’s five-year-long efforts to keep the investigative file secret.”

The case now returns to a lower court judge who will decide, consistent with the high court’s instructions, which documents in the 470-page investigative report will be released.

While it “respectfully” disagrees with the court’s decision, the university is confident it can make its case about “what records must remain private to protect the privacy rights of our students,” said UK spokesman Jay Blanton.

The case stems from the investigation of a professor accused of sexual misconduct by two students. The professor, who taught in UK’s College of Agriculture, denied the accusations but resigned as part of a settlement agreement with the university. The Kernel filed requests under the state’s Open Records Act seeking any documents about sexual harassment or sexual assault complaints made against the professor.

In a highly unusual twist, the university sued the campus newspaper after the state’s then-attorney general, Democrat Andy Beshear, determined the school had violated the state’s open records law. UK said its dispute was with the attorney general, not the newspaper. Beshear is now Kentucky’s governor.

The state’s high court on Thursday chastised the university while stressing the obligations of public agencies to comply with the open records act. Hughes wrote that those obligations were “ignored or minimized by the university at every step in this case.”

Even if it considered the records requests ill-advised, the university “is not authorized to decide what public records must be disclosed and what records can lawfully be withheld,” she wrote. “Those decisions are ultimately for the courts within the parameters” of open records law.

UK made no effort to itemize the investigative file, Hughes said. Instead, the school essentially treated it as “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 open records act, she wrote.

“Because the investigative file likely contains documents that are excepted under the ORA and documents that are not, the university’s duty, as a public agency, was to separate excepted and nonexcepted documents,” Hughes added.

And the university had the burden to prove a document could be withheld under law, she said.

The university cited its obligation to protect students’ privacy in refusing to turn over documents to the campus newspaper. The state’s high court said it agreed with the university’s position that protecting the the students’ privacy will entail redaction of more than names and addresses.

Once the case returns to the trial court, the university can raise privacy-related exemptions on specific documents and propose redactions, the Supreme Court said.

“The trial court can then consider whether the resulting document production appropriately balances the public and private interests at stake,” Hughes said.

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