Court of Appeals ruling a full-throated defense of open records

Published 7:26 pm Monday, May 20, 2019


The Advocate-Messenger

Kentucky’s Court of Appeals struck a blow in defense of the state’s Open Records Act last week, ruling that the University of Kentucky violated the law by refusing to release any records concerning sexual harassment claims against a former professor.

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It’s a huge victory for the people of Kentucky and government transparency. The ruling is a stinging rebuke of those who believe the government should be able to control what the public knows. But it’s worth more than that, too. It shoots down the underlying scheme deployed recently in many arenas from anti-accountability trolls, who have been working hard to erode the authority of the Open Meetings Act.

The University of Kentucky didn’t withhold the records in this case because it really believed the law prevented their release. It withheld the records out of contempt for the student journalists seeking the information, and with the goal of unraveling the state’s transparency laws so that it could engage in more obfuscation and control in the future.

The Kentucky Court of Appeals judges saw through the thin veil to UK’s real motivations and objectives. They utterly destroyed the university’s argument that the Family Educational Rights and Privacy Act should be radically re-interpreted to form new protections against releasing staff records that could be embarrassing for the parent institution.

“… the university has not yet made any attempt to comply with the Open Records Act in any meaningful way,” reads the ruling written by Judge Kelly Thompson. “It has taken the indefensible position that the records are exempt because it says they are and it must be believed. That position is directly contrary to the goal of transparency under the Open Records Act.”

In this particular case, the records in question — concerning sexual assault complaints made by students against former professor James Harwood — were later obtained through other channels by the UK student newspaper, the Kentucky Kernel. So there likely won’t be any new revelations about the original story when UK finally officially releases the records. But the ruling from Court of Appeals, which overturned a Fayette Circuit Court ruling in UK’s favor, is a revelation for the future of many other open records fights around the state.

This open records case is not the only one being fought by the Kentucky Kernel, nor is the Kernel the only student newspaper fighting universities over public records. In fact, so many student newspapers have been on the front lines, fighting to make sure Kentucky’s transparency laws are followed and respected, that student journalists as a whole were named the Most Valuable Member at the annual Kentucky Press Association convention in January.

The almost universal response from those leading Kentucky’s public institutions of higher learning has been to stonewall and muddy the waters. The Court of Appeals ruling should end one of those stonewalling efforts, and act as a warning shot to all of the others: In Kentucky, our government is accountable to the people, not the other way around; you don’t get to ignore the law just because it’s inconvenient for you.