Kentucky Kernel has filed open records requests for documents in a sexual assault case
University doesn't want to release the documents and is suing to keep the documents confidential
The University of Kentucky is suing its independently run student newspaper, the Kentucky Kernel, to keep documents about a sexual assault investigation involving a professor under wraps. University President Eli Capilouto announced his plans in a campuswide email on August 9.
The decision comes in response to an order from Kentucky Attorney General Andy Beshear telling the university to release the documents. The university is appealing the order, but to do so, it must name the newspaper as a party. The Kentucky Kernel went to Beshear’s office for help after the university denied two of its open records requests, according to current Kernel Editor-in-chief Marjorie Kirk.
The Kernel started trying to get the documents in January after a source close to two alleged victims in a sexual assault case against associate professor of entomology James Harwood came to them seeking help. Harwood had denied the accusations in a university investigation.
Nearly one month later, Harwood and the University of Kentucky would settle the case. Harwood was allowed to voluntarily resign, maintain his tenure and keep his full salary through August 31, according to the settlement. The alleged victims felt Harwood’s settlement let him off too easy, and they feared he could be hired at another university and repeat the offenses, according to the source close to the alleged victims. The source did not want to be named, fearing retribution.
“It seemed clear that UK was not going to publicize the results of their investigation,” the source told CNN in an email. “Harwood repeatedly claimed that he was resigning for family medical reasons, which prospective employers would have no reason to doubt. We turned to a news outlet to spread the truth and take action UK was unable and/or unwilling to take.”
Harwood was accused of sexual assault and harassment by two people, according to documents leaked to the Kernel. The investigation into Harwood took seven months and covered three years of allegations against him, according to the Kernel. There were two complainants who accused him of sexual assault or harassment, but a total of five alleged victims testified, both male and female, who were in Harwood’s department, according to the Kernel’s reporting. The university has not verified the authenticity of the leaked documents, university spokesman Jay Blanton told CNN.
Although the paper believes it has already obtained the case documents it needs, the university is suing the paper to keep information about the case private. Blanton said the president’s decision to appeal is about the larger precedent this sets for victim privacy in other sexual assault cases.
“More than anything else, this issue is about victims,” Blanton said. “It’s about what the university’s responsibility is to a victim survivor who has the courage to come forward when they’ve been victimized.”
The campuswide email from Capilouto cited three main reasons for wanting to keep the case information private: victim privacy, confidentiality of private and preliminary university information – whether that be a “grade point average or disciplinary file” for any student, faculty or staff member – and attorney-client privilege.
The appeal documents reinforced these claims, stating the attorney general’s decision ignored the university’s “obligations under federal privacy laws such as FERPA, VAWA, Clery, and HIPAA.”
The source close to the alleged victims thought citing victim privacy in the email didn’t make much sense.
“Protection of victim confidentiality is essential, though we were never contacted about our thoughts on this,” the source said. “We believe names and identifiers could be removed from the document to protect our identities while still sharing the nature of the investigation and its results.”
The source stated that the alleged victims wanted the paperwork released after the settlement, but with names and identifiers removed. They felt their privacy would be protected if the documents were released in that way, and the case could then be made more public.
“We wanted to make sure that the local community was aware of the problem on their campus,” the source said. “If the university wanted to protect its image and its community, full disclosure of the records would be best … the refusal to release the documents creates the impression of protecting Harwood and concealing the inner workings of UK.”
Beshear said he believes the university’s decision to appeal could not only affect the campus community, but also could have larger implications for overall transparency in the state.
“The University of Kentucky has long been a flagship institution, providing an excellent education to our students. However, the university’s recent defiance of open records law is irresponsible, especially for a public institution,” Beshear said in a statement to CNN. “The university’s position attempts to undermine the attorney general’s ability to enforce the Open Records Act, and would have a devastating impact on public transparency throughout the commonwealth.”
The implications for the case go past the state level, according to Student Press Law Center Executive Director Frank LoMonte. The University of Kentucky cites FERPA, the Family Educational Rights and Privacy Act, as one of the main reasons it can’t release the documents. However, LoMonte argues that FERPA is meant to protect education records only, not sexual assault investigation records which would be considered criminal if the events occurred off campus.
“Everyone knows this is not about privacy, this is about public relations,” LoMonte said. “They are trying to take a federal privacy law that is about education records and stretch it to include misconduct complaints against employees.”
Outside privacy laws, the university said it also believes releasing the documents would discourage other victims from coming forward in the future.
“One of the things that I think parents would tell you, and that students and victims and patients would tell you, is that we have a legal responsibility, but I think more importantly a moral responsibility, to hold their information confidential and private,” Blanton said. “That is a right, too, and that is a right that’s also enshrined in law.”
The names and identifiers of the alleged victims were required to be redacted in the attorney general’s open records decision. While the university states releasing these documents might prevent other victims from coming forward, LoMonte noted that more victims often come forward when they see other people complaining.
“Disclosing the existence of complaints regularly ends up bringing forward more complainants,” LoMonte said. “The Kernel’s own reporting says when people learned of complaints against this professor, they became more brave and more confident, and they came forward with their own complaints.”
Kernel editor Kirk, a senior at the University of Kentucky, said she is ready to fight the legal battle in court.
“At this point, as someone who has looked through these policies and has seen all of the problems with them … I am a little excited to go to court,” Kirk said. “I just can’t wait to go and see what a judge says. I don’t know the expressions they are going to make, but I feel like they would find this as incredulous as I do. I don’t see this as anything but a home run for us.”