Lawyer: Ruling supports right to access records in suit against Herald

Emily DeLetter

An attorney representing the Herald filed new court documents in the lawsuit between WKU and the Herald to argue that a similar case appearing in Franklin Circuit Court supports the Herald’s right to access faculty sexual misconduct records. 

Michael Abate, the attorney representing the Herald, argued in a recent court filing that allowing agencies to shield serious allegations of misconduct is dangerous because of a lack of alleged “substantiation.”

The similar case coming out of Franklin Circuit Court concerns an ongoing case between the Kentucky Labor Cabinet and Kentucky Public Radio/the Kentucky Center for Investigative Reporting.

In October 2018, the Labor Cabinet disclosed the name of Hector Fonseca, an employee who allegedly “repeatedly exposed himself to a co-worker and forced her to touch his genitals.” The filing states that after Fonseca denied the allegation and no additional witnesses came forward, he was transferred to another governmental agency.

“What might be dismissed on a cold, redacted record as an isolated “he-said/she-said” incident is, when viewed in context, part of a larger, alarming story about dangerous individuals allowed to occupy positions of public trust who are simply shuttled from place to place when troubling allegations arise,” Abate wrote in the case filing.

WKU sued the Herald in February 2017 to appeal an order from the Kentucky attorney general, who ruled WKU had to turn over records of sexual misconduct to the newspaper.

The lawsuit began before WKU student and Herald reporter Nicole Ares published a story examining sexual misconduct records at public universities around Kentucky. 

 

WKU has repeatedly held the position that it should not have to provide the Herald documents related to employee sexual misconduct because the student information in those documents is protected under the Family Educational Rights and Privacy Act, or FERPA.

FERPA is a federal law that protects the privacy of student education records, according to the Department of Education. WKU’s attorneys have said releasing the sexual misconduct documents violates FERPA because of the information in the documents that identifies students who may have been victims or witnesses.

Abate said it’s clear the lawsuit is not about violating student privacy, and any documents released from WKU can redact information about students.

Both the Herald and the University of Kentucky’s newspaper, the Kentucky Kernel, are defendants in the case.

“Both [lawsuits] present the same underlying question, which is whether a public agency has to disclose if employees have been accused of sexual misconduct, regardless of if the allegation was found to be true or not,” Abate said. “We think the [Franklin Circuit] court got it right, and Warren County should adopt the same ruling,” Abate said.  

Editor’s note: A previous version of this story incorrectly stated that the Herald and Kentucky Kernel were plaintiffs in the case instead of defendants. The Herald regrets the error. 

Reporter Emily DeLetter can be reached at 270-745-6011 or [email protected] Follow her on Twitter at @emilydeletter.