SPJ backs student newspaper’s plan to appeal open records decision

Journalists say a judge’s ruling supporting the University of Kentucky in a lawsuit against its independent student newspaper, The Kentucky Kernel, raises concerns about transparency and open government.

Fayette County Circuit Court Judge Thomas Clark ruled Monday the university was not required to provide the Kernel with some documents in a sexual misconduct investigation of a professor who resigned before the university took action against him.

“We strongly support the Kernel news staff in fighting for access to documents that are newsworthy and that deserve to be released to the public,” said Lynn Walsh, national president of the Society of Professional Journalists.

Clark ruled the documents were protected by the Federal Educational Rights and Privacy Act and that it was not possible to protect the identity of the students who had filed the complaints by redacting their identities.

That reasoning brought a sharp rebuke from Frank LoMonte, executive director of the Student Press Law Center.

“Court after court has said that employee personnel records are not FERPA education records, and this ruling represents a substantial deviation from that commonsense consensus that the appellate courts of Kentucky should readily overturn,” LoMonte said.

“The judge is clearly mistaken in making the all-or-nothing decision that every part of the documents is identifying, based on some fanciful theory that amateur sleuths will root around in university expense records to try to deduce victim identities.”

SPJ President Walsh also objected to the judge’s position that releasing the investigatory documents would lead to the identification of the victims, even if the names were redacted. She defended journalistic ethical practices that protect victims.

“Every day journalists tell stories responsibly and ethically protecting the names and identities of victims,” Walsh said. “For a court to allow documents related to a public employee accused of sexual assault to be withheld for privacy reasons is astonishing.”

University of Kentucky President Eli Capilouto said the goal of the legal process is “preserving the right of a victim survivor to determine how, when, or even if to tell her story. “
In a statement emailed to the university, he wrote: “We stand with survivors and we believe strongly that federal and state laws protect their right to privacy. Without privacy, we know victim survivors will not come forward to report. That’s what was at stake in this case.”

Marjorie Kirk, a senior journalism major and editor-in-chief of The Kentucky Kernel, said the newspaper will appeal the decision and pursue other stories involving transparency of university disciplinary conduct against students and faculty.

“We will continue to report on a system that has enabled professors and others who are found responsible for sexual misconduct to move within academia unnoticed,” Kirk said in an email.

The Bluegrass Pro Chapter of SPJ, which represents the central Kentucky region containing the UK campus, has supported the Kernel since the university filed the lawsuit in August.

Chapter President Liz Hansen expressed concern about the implications this decision has for journalists seeking information from public universities under Kentucky open records and meeting laws.

“The Bluegrass chapter has supported the Kernel from the beginning,” Hansen said. “We committed $1,000 for legal fees and we’ll continue to support the student journalists as the Kernel appeals the decision. We think the decision is a bad one for open records in Kentucky.

“This decision also continues to cause concern about the lack of transparency at the University of Kentucky,” she said.

Walsh said the ruling could impact journalistic practices beyond the UK campus. “The ruling sets a dangerous precedent for what public universities can keep secret under privacy exemptions,” she said. “It also sends a chilling message to college news organizations.”

LoMonte also expressed concern the ruling will have wide implications:

“Unfortunately, this ruling is going to give cover to colleges everywhere to throw a secrecy blanket over employee misconduct,” he said. “It can’t possibly be that Congress wants these records to be withheld as ‘student education records,’ so if the courts are going to knuckle under to pressure from college lawyers, then Congress needs to step up and take the side of victimized students.

“It is stomach-turning to read President Capilouto celebrating what he claims to be a victory for victim privacy, when in fact the university has succeeded in making this campus and all campuses less safe from sexual predation.

“The public needs to understand that ‘victim privacy’ was a belated and cynical litigation strategy that the university adopted when all of its other concealment efforts failed, and that no part of this case has ever been motivated by concern for anything other than the university’s own image.

“The bottom line of this ruling is that colleges will be able to enter into secret pass-the-trash agreements that enable wrongdoing employees to move on to other campuses with clean records to prey on unsuspecting students. Making campuses havens for sexual predators will be Eli Capilouto’s defining legacy, and will stain the University of Kentucky’s reputation for many years to come.”


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