Appeals Court rules in favor of Kernel in legal battle with UK

Jacob Eads

After two years of legal battles, a Kentucky Court of Appeals panel has ruled in favor of the Kentucky Kernel in UK’s lawsuit with the student newspaper.

UK’s case against the Kernel stems from a 2016 dispute over documents relating to a university-conducted sexual misconduct investigation of former professor James Harwood. Under the Kentucky Open Records Act, the Kernel requested documents related to the investigation, but was denied access by UK. 

After UK officials said the documents would not be provided to the Kernel, the Kernel appealed to Attorney General Andy Beshear, who has the statutory power to confidentially review documents in question. UK also denied Beshear access to the records. He then said that UK had violated the Kentucky Open Records Act, and in response, UK filed a suit against the Kernel.

In January 2017, a Fayette County judge ruled in favor of UK, but the Kernel appealed, bringing the case to the Kentucky Court of Appeals.

The Kentucky Court of Appeals heard oral arguments in Frankfort in late September 2018. Attorneys representing UK, the Kernel and the Kentucky Attorney General’s office all argued their positions before the panel.

The court’s decision will require UK to comply with the Open Records Act and give the requested documents related to the Harwood investigation to the Kernel. The court wrote in its opinion that UK made no meaningful attempt to comply with the Open Records Act in this case.

“In this instance, the University has not yet made any attempt to comply with the Open Records Act in any meaningful way,” reads a portion of the court’s opinion. “[UK] 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.” 

Outgoing Kernel editor-in-chief Bailey Vandiver said that the staff of the Kernel is thrilled about the news of the court’s decision in favor of the newspaper. 

“We’ve been waiting a really long time for this news, and we’re absolutely thrilled that it’s positive,” said Vandiver. “This is a really big win, not only for press freedom of course, but also for transparency of universities and other government institutions and keeping students safe on our campuses by holding our administrations accountable.”

The documents UK will be forced to provide will be redacted, eliminating any information that directly identifies, or could identify, a student.

UK spokesperson Jay Blanton maintained that UK still sees the court’s decision as a win for student privacy. 

“We are gratified that another court has strongly demonstrated its support for the important principle in this case — the legal and moral obligation we have to protect the privacy rights of our students. That continues to be the most important aspect of this case and now two courts have agreed with our position,” said Blanton.

Former Kernel editor-in-chief Marjorie Kirk said that the court’s decision was “relieving” for the Kernel staffers who published the initial stories about Harwood’s alleged misconduct.

“It’s very relieving,” said Kirk. “As the one who was filing these open records requests, and was so anxious to make sure this story was told properly and safely, it’s relieving to know the court has seen the importance of this journalism and this story – specifically reporting the pervasive and dangerous sexual violence that occurs at universities and so many universities are sadly covering up because of their publicity interests.”

The Kernel’s lawyer Tom Miller said the court’s decision could set a precedent for future open records cases.

“In three cases in which I am involved for student newspapers, the counsel for the university has taken the position that FERPA prevents the disclosure of employee records if there is a student mentioned anywhere. This case, for the first time, makes clear beyond any question that is not the basis for withholding employee records under the Open Records Act. It’s extraordinarily important, and hopefully the universities will stop using it as a fake basis for avoiding their responsibility under the Open Records Act,” said Miller.

UK still has the opportunity the file a motion for discretionary review with the Kentucky Supreme Court. Should UK seek to extend the battle over open records, Vandiver said the Kernel would be ready. 

“If the fight is going to continue, we will continue with that, and as always we’ll continue serving campus by producing great journalism as much as we can,” said Vandiver. 

This lawsuit was just one of three initially filed against the Kernel in its pursuit of documents related to sexual misconduct investigations at Kentucky universities. Western Kentucky University and Kentucky State University also filed suits against the Kernel after the newspaper requested documents from their institutions.

You can read the court’s entire decision here: