Records denial appeal filed to Attorney General

Nicole Ares

After the second consecutive denial of WKU faculty and staff sexual misconduct records, the Herald has filed an appeal to the Commonwealth of Kentucky Office of the Attorney General.

These records include documents of six university employee resignations since 2013 after the results of  Title IX investigations found violations of university policy, according to assistant general counsel Andrea Anderson.

WKU’s Office of the General Counsel has denied the Herald’s open records request, citing multiple Kentucky Revised Statutes and the ongoing litigation between the University of Kentucky and its student newspaper the Kentucky Kernel.

“WKU is aware of the ongoing litigation between the Kentucky Kernel and the University of Kentucky (“UK”) over disclosure of the very records requested from WKU,”Anderson said in the first denial letter to the Herald. “Should this matter resolve with the court ordering production of UK’s Title IX investigative files, WKU will supplement this response.”

After receiving WKU’s first denial letter, the Herald consulted with attorney Jon Fleischaker.

“Jon has more than 40 years of experience in media law and First Amendment cases, actively involved in representation of newspapers and broadcasters dealing with publication issues,” according to the Dinsmore law firm website where Fleischaker is a partner.

Fleischaker said WKU citing the Kentucky Revised Statute 61.878(j) as a reasoning for denial on the basis that it protects records that are “preliminary” in nature is invalid.

“Once it’s done it’s done,” Fleischaker said. “Since the initial complaint resulted in the resignation of a university employee, those records are no longer preliminary.”

After consulting with Fleischaker, the Herald sent another open records request to WKU stating Fleischaker’s opinion. In a brief email, Anderson again denied the Herald’s request.

“When the Judge issues a decision in the University of Kentucky v. Kentucky Kernel litigation, we will immediately revisit your request,” she said in the second denial email.

In April, former Kentucky Kernel Editor-in-Chief Will Wright filed an open records request for all misconduct investigation into a university employee. After UK denied the request, Wright wrote an appeal to the Attorney General’s Office, according to a Kernel article.

Attorney General Andy Beshear’s decision said UK should release all documents pertaining to a sexual assault and harassment investigation. On Aug. 31, UK filed a lawsuit against the Kernel to appeal this decision.

The Herald sent similar open records requests to eight Kentucky public universities, including UK, after the Kernel shared it had been denied records by WKU pending the outcome of its lawsuit.

The Herald requested “all investigative records for all Title IX investigations into all sexual misconduct allegations including: sexual assault, sexual harassment, sexual exploitation and/or stalking levied against university employees in the last five years.”

However, unlike the Kernel, the Herald was not denied its open records request to UK.

The UK’s executive director for public relations and Marketing Jay Blanton said they anticipated gathering these documents and supplementing the Herald’s response during the week of Nov. 28 to Dec. 2.

“The University’s Open Records Office is still gathering documents in response to your request,” said UK Director of Open Records Amy Spagnuolo in an email. “Once we have received all the records, we will need to review them and make any appropriate redactions pursuant to the laws.”

The Herald received a variety of responses from the eight Kentucky public universities.

The University of Louisville, Eastern Kentucky University, Murray State University and UK complied with the Herald’s open records request.

However, on the first occasion, UofL denied the Herald’s request. UofL senior compliance officer Sherri Pawson said these records were protected under the Family Educations Rights and Privacy Act. Then, she stated the number of complaints alleging violations of Title IX against university employees in the last five years which were 13 in total.

Nearly three weeks later, Pawson sent another email stating she had identified the records responsive to the Herald’s request. She said upon receipt of payment for printing and shipping costs, she would mail the copies of the records including 136 pages of redacted information.

EKU asked for additional time to supplement the response due to short staffing, lack of their primary open records paralegal, five open records request responses pending and the length of the records the Herald requested.

Murray state sent the Herald documents of three university Title IX investigations. One complaint resulted in the professor having to participate in sexual harassment training sessions, among other sanctions.

The other two complaints did not have sufficient evidence to find the professors in violation of university policy or a finding of sexual harassment.

Morehead State University and Northern Kentucky University agreed to supplement the Herald’s response to an extent.

Morehead General Counsel Jane Fitzpatrick said in an email “there has been one sexual harassment investigation and hearing that resulted in a finding that the employee was indeed responsible to the violation.” She requested a mailing address so she would not have to send documents containing names electronically.

Fitzpatrick said Morehead, similar to WKUs response, would not provide records that are still “preliminary” in nature. She also cited FERPA and the ongoing litigation between UK and the Kernel.

“If a final court decision determines additional MSU records should be produced, MSU will supplement the response,” Fitzpatrick said in an email.

Similar to Morehead’s response, NKU did not provide any records that NKU Vice President for Legal Affairs and General Counsel Joan Gates classified as “preliminary in nature” or records that would disclose as student’s identity as protected under FERPA.

However, it did provide two investigative records filed against a professor and staff member. In one case, the professor was required to take an online discrimination and sexual harassment training course.

In the second case, the staff member was required to have no further contact with the complainant. He retired four months after the formal meeting in which the complaint was discussed.

WKU and Kentucky State University were the only two public universities to completely deny the Herald’s request.

KSU General Counsel Gordon Rowe cited the Clery Act, the Violence Against Women Act, FERPA and victims’ fundamental rights to privacy,” as its reasoning. Also, Rowe said the issue is currently being litigated in the Kentucky Court System– the University of Kentucky v. The Kernel Press Inc. case.

Similarly to the Kernel, the Herald sent an open records request appeal to the Attorney General’s Office on Nov. 21.

“The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884,” according to the Kentucky law.

WKU also has the opportunity to write to the Attorney General in response to the Herald’s appeal. However, WKU must send a copy of its response to the Herald and as of Nov. 29, it has not yet done so.

The Herald will update this story more information becomes available.

Reporter Nicole Ares can be reached at 270-745-2655 and [email protected].