UK student newspaper asks judge to revisit ruling in university - WDRB 41 Louisville News

UK student newspaper asks judge to revisit ruling in university records fight

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LEXINGTON, Ky. (WDRB) – The University of Kentucky’s independent student newspaper has asked a judge to revisit a ruling that all investigative records of sexual assault allegations against a former professor can be shielded under federal privacy law.

At issue is the case of James Harwood, who was accused of sexual assault by two students in 2015. The Kentucky Kernel attempted to obtain records of the university's probe last year, but UK denied the request.

Attorneys for the Kernel filed the motion Monday in Fayette Circuit Court, noting that UK didn’t produce an index of investigative documents until after Circuit Judge Thomas L. Clark’s January 23 opinion that the documents are “educational records” covered by the Family Educational Rights and Privacy Act.

The act is meant to protect the privacy of students by prohibiting the release of education records without students’ approval. Clark also found that “the records cannot reasonably be redacted to support the privacy rights” of the students who made the allegations.

But the Kernel argues in its motion that the index UK provided on January 24 “makes clear that the file is replete with documents that cannot fall within the protections” of the federal act or within the exceptions of the Kentucky Open Records Act. It says the index includes “numerous” documents that don’t directly relate to students.

It cites notes on interviews conducted with co-workers of Harwood, a College of Agriculture professor who court records say was accused in 2015 of sexual assault by two female graduate students, and notes from a meeting with Harwood about ending his employment at UK.

The newspaper also claims UK’s description of other documents in the investigative index “belies its insistence that redaction is impossible in this case.” For instance, it argues, emails that describe the “investigative process” don’t create any privacy concerns.

A hearing on the motion is scheduled for February 10 in Lexington.

The motion was filed days after Marjorie Kirk, the Kernel’s Editor-in-Chief, told WDRB News last week that the newspaper was preparing to appeal the judge’s ruling.

“There is absolutely a way to take out information that could be considered too private and to still gather information that could be useful to the public to prosecute these people in court, to let the public know what kind of people they are and to let universities know who they’re hiring,” she said.

The case came to light in April 2016 when the Kernel reported the UK’s Office of Institutional Equity and Equal Opportunity had been investigating allegations of sexual misconduct against Harwood, which he denied. After UK denied the Kernel’s request for the investigative documents under the Kentucky open records law, the newspaper appealed to the state’s Attorney General.

In August, Attorney General Andy Beshear’s office ruled in favor of the Kernel and ordered UK to provide the records after the names and identifying information of accusers and witnesses were redacted. Then, because of how Kentucky’s open records law is written, the university had to sue its own student newspaper to appeal the Beshear decision.

The Kernel obtained details of the investigation and reported several of the findings last August, including that investigators found “enough evidence for a reasonable person to believe the alleged behavior occurred and this matter should be presented to the Sexual Misconduct Hearing Board.”

Harwood resigned before a hearing could occur.

UK President Eli Capilouto said in an interview last week that the January 23 court ruling was “clear and backs up the university’s opinion.”

He also referred to the part of Clark’s ruling saying that redaction would not necessarily ensure the privacy of students.

“We believe that victims of sexual assault should be the only individuals that can determine how and in what way they want to tell their story,” Capilouto said.

He also defended the settlement with Harwood, saying that “the faculty member chose, and it was his right under those policies at the time, that he was going to separate from the university. So if we would have wanted to continue that case, it would have gone on for months and possibly years.”

UK’s decision to file a lawsuit against its student newspaper made national headlines. Capilouto said he didn’t like the “public disagreement” brought by the lawsuit, but that it has increased awareness about sexual assault on campus.

“The judge’s decision and the awareness that has been raised is a good thing,” he said. “If the price we had to pay was some uncomfortable publicity, I’m fine. If it leads to fewer cases of sexual assault, then it would have been beneficial.”

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