Herald, WKU file FERPA briefs, AG files motion for summary judgment in ongoing lawsuit

Gavel/law/lawsuit/courts

Attorneys for the College Heights Herald have filed a brief regarding WKU’s stance that it does not have to provide documents related to employee sexual misconduct because the student information in those documents is protected under FERPA.

Additionally, the attorney general’s office filed a motion for summary judgment. The motion stated that there is no “genuine issue of material fact” in the lawsuit and accused WKU of violating the Kentucky Open Records Act by refusing to allow the attorney general to review the documents in private.

A summary judgment, according to Law.com, is “a court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.” 

According to the attorney general’s motion, WKU has since admitted that some of the documents are not protected under FERPA. WKU has now said some of the documents are exempt because they are “preliminary.”

The motion requests the judge approve the motion for summary judgment, declare WKU’s refusal to comply with the attorney general’s request to review the documents as against the law and send the Herald’s open records appeal back to the attorney general to review in private. From there, the attorney general would decide whether the student newspapers are allowed access to the documents.

FERPA, the Family Educational Rights and Privacy Act, protects access to students’ educational records and limits the information schools can share about students, according to the brief. 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.

Mike Abate, the Herald’s lawyer, said the sexual misconduct documents are exempt from FERPA because the documents are employee discipline records, which are not given protection under FERPA. He said WKU has argued that the university will lose federal funding if the documents are released. Universities who violate FERPA can lose federal funding.

“You’re allowed to de-identify and redact student information without losing [funding],” Abate said.

Bob Skipper, director of media relations, said WKU did not have a statement about the briefs filed today. 

Abate said WKU and the attorney general’s office both filed briefs today as part of a “simultaneous briefing” in response to WKU’s claim FERPA prohibits the release of the documents.

In its brief, WKU said the records are protected under FERPA as education records because the documents contain information that is directly related to a student and is maintained by an educational institution. The brief also said the documents are education records because they relate to a student and are maintained by that student’s university.

The brief also said because FERPA is a federal law, it overrules the Kentucky Open Records Act, a state law.

The lawsuit between WKU and the Herald began after former Herald reporter Nicole Ares requested documents concerning sexual misconduct allegations against employees at the university. WKU acknowledged there had been 20 investigations since 2013 with six cases found to be in violation of university policy.

WKU refused Ares’ request to review the documents stating that because the employees in those six cases resigned before any disciplinary action was taken, the requested documents were preliminary and exempt from open records laws.

The Kentucky Kernel, the University of Kentucky’s student newspaper, also filed requests for the same documents. When both newspapers were denied, the Herald and The Kernel appealed to the attorney general.

The attorney general requested to view the documents in private, but WKU refused to turn over the documents. In response, the attorney general ruled WKU had violated the Kentucky Open Records Act and had to turn over the documents with information relating to the victim or witnesses redacted. WKU refused and sued both student newspapers.

The next hearing for the case is in Warren County Circuit Court April 6 at 10 a.m.

Abate said the parties will present their oral arguments explaining whether or not FERPA relates to the case. He said even if the judge agrees with the attorney general and the Herald, the case will still continue because WKU has several reasons to not release the documents.

Read our continued coverage of WKU’s lawsuit against the Herald here

A previous version of this story said that in addition to suing both student newspapers, WKU also sued the attorney general. WKU did not sue the attorney general. The Herald regrets the error. 

News reporter Emma Collins can be reached at 270-745-6011 and [email protected]