A Warren Circuit Court judge on Monday directed WKU to turn over documents the university has declined to release to the College Heights Herald, so the judge can review the records and WKU’s specific reasons for refusing to release them.

Circuit Judge Steve Wilson gave WKU 60 days to give him full records, unredacted, from cases the Herald sought in which faculty and/or staff members were found to have violated WKU’s sexual misconduct policy.

Wilson also directed WKU to provide records that are redacted to protect the identity of the victims and witnesses, and for WKU to cite specific laws that require each piece of information to be redacted.

Once he gets the records, Wilson said, he will review them within 30 days, and then schedule a follow-up hearing. Wilson explained his ruling as a way to become more educated on the documents while still preserving privacy.

“We are pleased with how things went today,” said Mike Abate, the Louisville attorney representing the Herald. “We argued for the right to proceed with our case and Judge Wilson has promised to keep things moving.”

WKU has previously said there were 20 complaints during the five-year period the student newspaper wanted to review, and the university found violations in six of those cases. In each instance, the university previously said, the faculty or staff member found in violation resigned, ending the investigation.

WKU sued the Herald after Attorney General Andy Beshear ruled WKU had violated Kentucky’s Open Records Act by denying the records to the Herald, and also by refusing to allow the attorney general’s office to review the records.

Wilson’s ruling Monday came during a hearing on a WKU motion to stay, or delay, its lawsuit against the Herald until a similar court case between the University of Kentucky and the Kentucky Kernel student newspaper works its way through appellate courts.

Tom Kerrick, the attorney representing WKU, said the UK and WKU cases were “virtually identical,” and it was wasteful for the WKU case to move forward before the UK-Kernel appeals are finished. “The issues are clearly the same,” Kerrick said. He explained if a decision was made in the UK case, WKU would be using it as a precedent.

Abate and Travis Mayo, an attorney representing Beshear, disagreed. While the cases involve the same sets of state and federal laws, they said, the facts of the WKU case are different from those involving UK.

Abate noted that six of the eight state universities, including UK, provided redacted records after receiving similar requests from the Herald. Only WKU and Kentucky State University refused to release redacted records. “What we want to see here is for Western to do what all these other universities have done,” he said.

Elliott Miller, the attorney representing the Kentucky Kernel, which filed a similar request with WKU and which WKU also is suing, agreed it was urgent for the WKU case to proceed. Miller explained the case has become a matter of great public interest.

Kerrick argued the records are protected from public disclosure under the Family Educational Rights and Privacy Act. Kerrick said WKU is concerned even redacted records would not protect the identities of victims and witnesses because so much information is available on the internet.

Kerrick said releasing these records may also impact people such as accused faculty and staff who were found innocent.

Abate said the Herald is not seeking names of victims or witnesses, but rather trying to find out how the university handled cases in which faculty and staff were found to have violated WKU’s sexual misconduct policy. Abate explained it should be a priority to find out if cases of misconduct are not being fully processed.

Mayo explained the attorney general intervened in the case because WKU refused to allow the attorney general’s office to conduct a confidential review of the records the university denied the Herald. That provision, he said, is part of state law, and WKU’s refusal to allow the review left the office “hindered in rendering a decision.” 

In his introductory remarks, Kerrick stated the attorney general has shifted on this issue. Mayo said the attorney general has not changed his position but makes decisions on a case to case basis.

Wilson also ordered WKU to preserve all records involving the sexual misconduct cases until the lawsuit is resolved. Ordinarily, the university destroys records after six years. WKU agreed to maintain the records.

Reporter Rebekah Alvey can be reached at 270-745-6011 and [email protected].