This battle is (kind of) over. It shouldn’t have had to be fought.



Kernel Editorial Board

Five years. Six editors. Thousands of dollars in court fees and lawyer payments.

The University of Kentucky’s lawsuit against the Kentucky Kernel has had a heavy toll. But in the end, the ruling was simple: the University of Kentucky’s arguments were not based in the letter of the Open Records Act, and the University of Kentucky failed to obey the spirit of the law throughout five years of legal proceedings.

The ruling from the Kentucky Supreme Court is a clear victory for the Kernel, for journalists, and for everyone that relies on open records – which is all Kentuckians, and all citizens. Open records are a mechanism for holding public agencies accountable that the University of Kentucky is bound to as a taxpayer-funded institution. Pursuing a lawsuit against its student newspaper cost UK money, too.

But we would be remiss not to mention the fact that the outcome of this case is exactly the same as what would have happened if UK had complied with the initial request five years ago. The Supreme Court ruled that the case return to trial court on remand, which means UK must sort through the documents and turn them over to the Kernel with legal justification for each record withheld, a process explicitly outlined in the open records law.

A circuitous path through three different courts has brought the university right back where it started. So why did it take five years in court for the university to comply with a request that was within the bounds of Kentucky’s open records law along? At the end of this ultimately roundabout exercise, the past five years look more like an excuse for the university to flex their muscles over an independent, student-run newspaper than a genuine objection to the fulfillment of this open records request.

The Kernel committed to standing up for freedom of information and the rights of journalists. Still, we are saddened to know five years of legal proceedings at the highest level in the Commonwealth were necessary for the university to comply with the law.

The university claims that they pursued this issue in court out of an obligation to protect the identities of their students. This is false. From the start of this ordeal, the Kernel asked for names and identifying information to be redacted from the documents – the exact same measure now conferred upon the university by the Supreme Court.

Additionally, the university misrepresented the Kernel’s purpose behind pursuing the records and accused student journalists of negligence and insensitivity. To suggest that the Kernel sought these records in order to sensationalize the trauma experienced by the individuals, as the university’s representation claimed at the Supreme Court hearing, discounts who we are, not just as journalists, but as human beings. The Kernel had women as editors the year the lawsuit began, the year the case was heard by the appellate court and this year at the Supreme Court hearing, a fact that makes those implications even more absurd.

Furthermore, to suggest that the Kernel would be careless with personal and sensitive information ignores the utmost caution that has gone into the Kernel’s reporting on the Harwood investigation so far. No current Kernel staffers know the identities of the victims. And, because all along the Kernel asked for the names to redacted, no Kernel staffer will.

Despite being the “winners” in court, the Kernel recognizes that this legal circus should not have been necessary, and that it has dragged out the victims’ experience far past what should have been an open and shut investigation.

The Kernel finds it disgraceful that the trauma experienced by the victims has been reduced to a legal squabble between two parties equally aware of the letter of the law. But it is the burden of the university to fulfill the law, and the responsibility of the press to hold them accountable for it.

It is fundamentally disrespectful that the original intent behind the records request – to shed light on an alleged sexual misconduct case and bring justice to the victims – has been overshadowed by a five-year legal struggle about freedom of information. By refusing to comply with the initial request, and complicating the process every step of the way, the university has dragged out what in the end is a very simple process.

At the highest level of the law in the Commonwealth, the Kentucky Supreme Court, the justices unanimously agreed that the university’s arguments were baseless and furthermore that UK failed to meet its obligations under the open records law and showed disdain for the process.

At a basic level, the Kernel won. It cost time. It cost effort. It cost many student journalists the experience of an unencumbered newsroom. But it is no victory to know that our public institutions actively resist the obligations they have to citizens. And the battle is not quite over – the case will revert back to trial court for a full examination of the documents. The Kernel’s representation has already reached out to the university to begin this process.

But beyond this particular matter, open records in Kentucky are under attack in the legislature. The Kernel hopes that our suit serves as a lesson and reminder of the importance of a functioning press and free information, and that the universities with outstanding obligations to the Kernel and other student newspapers in open records disputes take heed of this case’s precedence and act accordingly. We will not rest until they do.