Ruling by Court of Appeals in UK case could benefit Herald

Lily Burris

In a case similar to WKU’s lawsuit against the College Heights Herald, the Kentucky Court of Appeals on Friday overturned a Fayette Circuit Court ruling that allowed the University of Kentucky to withhold files relating to a sexual misconduct investigation from the Kentucky Kernel.

When the Kernel requested files relating to the investigation under Title IX of one of the professors at UK, the university attempted to withhold the entirety of the files based on FERPA, the Family Educational Rights and Privacy Act, due to students mentioned in the investigation.

In the appeals court ruling, the court said only specific educational records, not all records pertaining to students, are protected under FERPA, and ordered UK to produce records redacted of protected information for the circuit court to reconsider the case.

The appeals court ruling, written by Judge Kelly Thompson, was supported by  Judge Larry Thompson. Judge Jeff Taylor dissented, but no dissenting opinion was published.

In the similar WKU case, the Herald sought records redacted of private student information from all eight state universities relating to Title IX investigations over a five-year period. Six of the eight schools, including UK, produced the redacted records for the Herald; WKU and Kentucky State refused.

The Kentucky Attorney General’s Office, in both the WKU and UK cases, ordered the universities to turn over redacted records to the student newspapers. Instead each university sued its student newspaper. The Herald’s statewide reporting revealed that faculty and staff found to have committed sexual misconduct often were allowed to continue with few consequences and, in some cases, were allowed to resign or retire with nothing about the incident in their personnel records. The story won numerous national awards. 

Because of the similarities between the Herald and Kernel cases, Friday’s ruling was pivotal, said Michael Abate, the Herald’s attorney.

“The Court of Appeals said very clearly that there’s no blanket exception under FERPA for any record that happens to mention a student,” Abate said. “They went out to their way to hold that the university is absolutely free to release records that have been properly redacted, notwithstanding FERPA, which is what is what we’ve been saying since day one.”

The state Court of Appeals stated that the files UK is trying to withhold are not exempt due to FERPA and can be redacted for release. It sent the case back to Fayette Circuit Court and directed that court to require that UK produce specific justification for any information it seeks to keep secret.

Both Deborah Wilkins, WKU’s general counsel, and Ena V. Demir, the lawyer representing WKU, were unavailable for comment.

News reporter Lily Burris can be reached at 270-745-6011 and [email protected]. Follow her on Twitter at @lily_burris.