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KY Supreme Court unanimously agrees with The Kernel that the UK violated the state’s Open Records Act

By Tom Latek
Kentucky Today

The Kentucky Supreme Court unanimously upheld a ruling on Thursday finding the University of Kentucky violated the state’s Open Records Act in denying records to the student newspaper, ending a six-year legal battle.

In 2015, two UK graduate students complained of sexual assaults by Dr. James Harwood, a professor in the University’s College of Agriculture. The university investigated the allegations and prepared a final investigative report detailing its findings. In February 2016, the university reached a separation agreement with Harwood who left his position with certain continuing financial benefits and with tenure intact.

Upon learning of the events, The Kentucky Kernel filed two Open Records Act requests seeking disclosure of various documents, including those pertaining to UK’s investigation of Harwood. Although the school provided some personnel records, as well as a copy of Harwood’s resignation letter and separation agreement, a second request for the investigative file was denied.

The Kernel requested a review by the Attorney General’s Office, who after considering the university’s legal memorandum, ordered the school to disclose the records with appropriate redactions. UK refused and filed suit at Fayette Circuit Court.

The judge conducted an examination of the investigative file maintained by the school and concluded that the entire file was protected as “education records” under the Family Education Rights and Privacy Act, or FERPA.

On appeal, the Court of Appeals reversed the trial court’s order, finding that UK failed in the first instance to comply with its statutory obligations under the ORA and, when challenged, failed to meet its burden of showing that the requested records are exempt from disclosure.

In a 37-page ruling, the justices unanimously stated, “We, too, find that the university failed to comply with its obligations under the ORA and that the trial court clearly erred in finding the entire investigative file exempt from disclosure.

“We affirm the Court of Appeals and remand this case to the trial court for further proceedings in accord with the ORA and this opinion.”

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