A long overdue conclusion to protracted open records litigation between Western Kentucky University and two newspapers – Western Kentucky’s College Heights Herald and University of Kentucky’s Kernel – has been reached.
On August 16, Warren Circuit Court Judge Chris Cohron issued an “Order for Production of Documents” in the case, directing WKU to “produce minimally redacted copies” of records in sexual misconduct investigations conducted under Title IX.
The Kernel requested the records from WKU in 2015 and the College Heights Herald in 2016.
Resolution of Western Kentucky University v College Heights Herald and The Kernel Press was delayed, at least in part, by the standard appeals process. But “all actions in this case halted” when the “Kentucky Supreme Court granted discretionary review of a similar case from Fayette Circuit Court.” On March 25, 2021, “the Supreme Court published its opinion in University of Kentucky v. Kernel Press, Inc., providing guidance for the instant case.”
In that opinion, the Supreme Court recognized that “Kentucky citizens have a strong interest in ensuring that public institutions, including the University, respond appropriately to accusations of sexual harassment by a public employee” and that only limited redaction was permissible except as to victims.
“In light of Kernel Press, Inc.,” Judge Cohron wrote, “the parties began to renegotiate disclosure of the requested investigations.”
Although WKU immediately agreed to “follow legal precedent,” indicating that the Supreme Court opinion in University of Kentucky v Kernel Press, Inc. “provides much needed additional clarity,” subsequent disclosures contained excessive redactions.
Nearly 1900 pages of responsive records released by WKU on May 28, 2021, were heavily redacted. The university masked information ranging from “what occurred to prompt the allegations, details of what happened in the investigations, and in some cases the names of faculty and staff supervisors who were informed of the investigations” to “words from two of its own policy documents which were part of the case file but are available in full on the university website.”
Ultimately, discussions stalled over WKU’s redaction of investigative records in which claims of sexual misconduct leveled against employees were deemed unsubstantiated as opposed to those in which the claims were deemed substantiated.
In his order, Judge Cohron rejected this dichotomy. Relying on decades of legal authority emanating from the courts and the Kentucky Attorney General, he reasoned, “Disclosure of the identities of those wrongfully accused in unsubstantiated claims does not constitute an unwarranted invasion of privacy” because of the strongly substantiated public interest “in ensuring that public institutions, including the University, respond appropriately to accusations of sexual harassment by a public employee.”
The Warren Circuit Court concluded “The names and job titles of those accused in unsubstantiated claims, the judge concluded, “are a warranted invasion of privacy subject to disclosure.” But because “disclosure of personally identifiable information (PII) of [the] wrongfully accused is not limitless, other PII – such as contact information, addresses, phone numbers, birth dates, Social Security Numbers, and other private personal information, etc. – has no bearing on the allegations or the fruitfulness of WKU’s investigation and, therefore, is not subject to disclosure as this would result in an unwarranted invasion of privacy.”
The court declined to award attorneys fees in the case. The College Heights Herald and the Kentucky Kernel will bear the cost of WKU’s open records noncompliance.
Judge Cohron’s Order for Production of Documents should be the final chapter in this long and costly tale of university delay and student journalist persistence.
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