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The Kernel Press, Inc. v. Commonwealth

Court of Appeals of Kentucky

May 17, 2019

THE KERNEL PRESS, INC., D/B/A THE KENTUCKY KERNEL APPELLANT
v.
UNIVERSITY OF KENTUCKY; THE KENTUCKY PRESS ASSOCIATION; STUDENT PRESS LAW CENTER; AMERICAN SOCIETY OF NEWS EDITORS; ASSOCIATED PRESS MEDIA EDITORS; ASSOCIATION OF ALTERNATIVE NEWSMEDIA; COLLEGE MEDIA ASSOCIATION; SOCIETY OF PROFESSIONAL JOURNALISTS AND REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS APPELLEES AND COMMONWEALTH OF KENTUCKY, EX REL. ANDY BESHEAR, ATTORNEY GENERAL APPELLANT
v.
UNIVERSITY OF KENTUCKY APPELLEE

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE THOMAS L. CLARK, JUDGE ACTION NO. 16-CI-03229

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE THOMAS L. TRAVIS, JUDGE ACTION NO. 16-CI-03229

          BRIEFS FOR APPELLANT THE KERNEL PRESS, INC., D/B/A THE KENTUCKY KERNEL: Thomas W. Miller Elizabeth C. Woodford Lexington, Kentucky

          ORAL ARGUMENT FOR APPELLANT THE KERNEL PRESS, INC., D/B/A THE KENTUCKY KERNEL: Thomas W. Miller Lexington, Kentucky

          BRIEFS FOR APPELLANT COMMONWEALTH OF KENTUCKY, EX REL ANDY BESHEAR, ATTORNEY GENERAL: Andy Beshear Attorney General of Kentucky La Tasha Buckner Assistant Deputy Attorney General Travis Mayo Executive Director Office of Civil & Environmental Law Sam Flynn Assistant Attorney General Frankfort, Kentucky

          BRIEFS FOR APPELLEE UNIVERSITY OF KENTUCKY: Joshua M. Salsburey Bryan H. Beauman Megan K. George Lexington, Kentucky William E. Thro Lexington, Kentucky

          ORAL ARGUMENT FOR APPELLEE UNIVERSITY OF KENTUCKY: Joshua M. Salsburey Lexington, Kentucky

          AMICI CURIAE BRIEF FOR APPELLEES: THE KENTUCKY PRESS ASSOCIATION; STUDENT PRESS LAW CENTER; AMERICAN SOCIETY OF NEWS EDITORS; ASSOCIATED PRESS MEDIA EDITORS; ASSOCIATION OF ALTERNATIVE NEWSMEDIA; COLLEGE MEDIA ASSOCIATION; SOCIETY OF PROFESSIONAL JOURNALISTS AND REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS: Michael P. Abate Louisville, Kentucky

          BEFORE: TAYLOR, K. THOMPSON AND L. THOMPSON, JUDGES.

          OPINION

          THOMPSON, K., JUDGE

         The Kernel Press, Inc. d/b/a The Kentucky Kernel (the Kernel), appeals an opinion and order of the Fayette Circuit Court ruling documents requested by the Kernel from the University of Kentucky (the University) under Kentucky's Open Records Act, KRS[1] 61.870 et seq., are exempt from disclosure under the Family Educational Rights and Privacy Act (FERPA) because they cannot be reasonably redacted to protect the privacy of the students identified in those records. Also before this Court is an appeal filed by the Commonwealth of Kentucky, ex rel. Andy Beshear, Attorney General (AG), after the Fayette Circuit Court denied the AG's motion for summary declaratory judgment regarding the authority of the AG under the Open Records Act to conduct an in camera review of documents that are protected or privileged, including those within the purview of FERPA.

         We conclude that the University failed to follow the Open Records Act by not fulfilling its statutory mandates under the Act. We also conclude that the University failed to meet its burden in circuit court to prove that all the requested records are exempt from the Act when its only proof was an insufficient index and copies of the requested records for the circuit court's in camera review. We further conclude that the University violated the Open Records Act when it refused to permit the AG to conduct an in camera review of the requested records in redacted form. We reverse and remand this case to the circuit court for the University to separate nonexempt records from records claimed exempt, redact any personally identifying information from exempt records and, to the extent possible without disclosing exempt information, state with exactness why each record is exempt. If requested, the circuit court may also consider the award of costs, attorney's fees and penalties as provided for in KRS 61.882(5). We deny the AG's request for declaratory judgment in so far as it requests injunctive relief against the University.

         This case involves material compiled by the University as a result of an investigation conducted pursuant to Title IX of the United States Education Amendments of 1972, which prohibits sex discrimination, including sexual harassment or sexual assault, under any program or activity receiving federal funds. 20 United State Code (U.S.C.) §1681 et seq. When an educational institution receiving federal funds is aware of an alleged sexual assault by a member of its educational community, it must respond with something other than deliberate indifference. Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999).

         In the summer of 2015, two female students in the University of Kentucky's College of Agriculture's Department of Entomology complained of sexual assaults by tenured professor, James D. Harwood. To comply with Title IX, the University's Office of Institutional Equity and Equal Opportunity (Institutional Equity) investigated the allegations.

         The University presented its findings to Harwood, who chose to resign from the University prior to a final adjudication of the matter. According to the terms of the agreement between the University and Harwood, Harwood would continue to receive pay and benefits until August 31, 2016. After learning Harwood could resign and seek academic employment elsewhere, the complaining students sought to expose what they believed was a flaw in the Title IX reporting and investigation process and, through a spokesperson, contacted the Kernel, the University's student newspaper.

         On March 21, 2016, the Kernel sent the University a letter pursuant to the Kentucky Open Records Act seeking:

. . . to obtain copies of all records detailing Dr. James D. Harwood's resignation amid accusations of sexual assault [including but not limited to] the Title IX complaints filed by the two female students, any reprimands and any condemnations, Harwood's personnel file, and any documents detailing the University of Kentucky's investigation into allegations of sexual assault, sexual harassment, or allegations of alcohol abuse committed by Harwood.

         On March 29, 2016, the University sent the Kernel records from its Human Resources Department and personnel records from the College of Agriculture, subject to redactions of personal information, such as Harwood's home phone numbers and addresses. The University also provided Harwood's separation agreement and resignation letter. However, the University refused to release for inspection its Title IX investigation file.

         On April 7, 2016, the Kernel again made an open records request asking for "an opportunity to obtain copies of all records detailing the investigation" by the University or Institutional Equity of Harwood and "any allegations of sexual harassment, sexual assault or any other misconduct" by Harwood. The University responded to the request as follows:

Please be advised that all records detailing the above-referenced investigation from the University's Office of Institutional equity and Equal Opportunity are unable to be released pursuant to KRS 61.878(1)(i) and (j). These records are considered preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of a final action of a public agency; or preliminary recommendations, and preliminary memoranda, in which opinions are expressed or policies formulated or recommended and are exempt from disclosure. Additionally, some documents in the file are protected pursuant to KRS 61.878(1)(a), as they contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. Finally, some documents are protected pursuant to Kentucky Rules of Evidence 503, as they are considered attorney-client/work product privileged and are exempt from disclosure.

         The Kernel requested review by the AG pursuant to KRS 61.880(2).

         To resolve the matter, the AG authored a letter to the University instructing it to substantiate its denial of the request by providing written responses to specific inquiries as to the exceptions and privileges cited by the University. In that same letter, the AG asked the University to explain "any challenges that impeded the University's ability to redact the names and personal identifiers of Dr. Harwood's accusers per KRS 61.878(4)" and explain whether the University was also asserting privacy rights on Harwood's behalf. The letter concluded with a request that the University provide the AG with copies of the documents for in camera review in redacted form to protect the names and the personal identifiers of the students.

         The University filed a supplemental response. In addition to the exceptions to the Open Records Act previously relied upon in denying the requested records and the attorney-client privilege, the University asserted that it could not release the records based on FERPA to the Kernel or to the AG for in camera inspection. It referenced a July 25, 2006 Letter from the U.S. Department of Education's Family Policy Compliance Office to Texas Office of the Attorney General Family Policy Compliance Office advising that FERPA does not permit a state attorney general to conduct an in camera review of education records.

         On August 1, 2016, the AG rendered a decision in the Kernel's favor on the grounds that the University failed to meet its burden of proof in denying the Kernel's request by not providing records for an in camera review. The AG ordered that the University make duplicate records immediately available for the Kernel's inspection and copying with the names and personal identifiers of the complaining students and student witnesses redacted.

         Pursuant to KRS 61.882, the University appealed the AG's decision to the Fayette Circuit Court. The AG intervened in the action to seek a declaration of rights on the issue of the AG's authority to require government agencies to submit documents withheld from open records requests to the AG for in camera review. Later, the complaining students filed an amicus brief aligning themselves with the University's position that compliance with the AG's request would disclose personal identifying information.

         On January 23, 2017, the Fayette Circuit Court entered an order reversing the AG's opinion. The court concluded the requested documents constituted "education records" under FERPA and, after an in camera review, that the records could not be redacted to remove all personally identifiable information. That order was not made final and appealable and did not address the AG's declaratory judgment action.

         The day after the court entered its order, the University responded to discovery requests propounded upon it by the AG. That response, filed over nine months after the Kernel made its first open records request, included an index of the investigation file regarding the accusations made against Harwood. It categorized that material in the file as follows: (1) Final Investigative Report and related exhibits, notes and emails; (2) Miscellaneous notes; (3) Student C; (4) Complainant 2; (5) Harwood, James;[2] (6) Student D; (7) Complainant 1; (8) Students E and F; and (10) Student G. Within each category, the University claimed all material was exempt, redundantly making the same statement:

Exemptions Claimed: The records indexed under this tab are exempt in whole or in part pursuant to FERPA, the [Violence Against Women Act], Clery, and /or the U.S. Constitution consistent with KRS 61.878(1)(k). The records are further exempt in whole or in part pursuant to KRS 61.878(1)(a), (i) and/or (j) as preliminary records and/or records for which disclosure would create an unwarranted invasion of personal privacy.

         Within each category, the index included various records. The records included photographs; documents such as notes taken regarding interviews with student witnesses, the complaining students and others; notes regarding the dissertations of the complaining students; emails from various sources and other identifying information. Also among the voluminous file were materials such as a camera user manual, University policies, notes regarding interviews with co-workers regarding Harwood's professionalism, Harwood's curriculum vitae and emails regarding scheduling various meetings.[3]

         Based on the index, the Kernel filed a motion to alter, amend or vacate the circuit court's February 17, 2017 order insofar as it concluded that every part of the file was protected from disclosure and no part of the file could be redacted so as to protect the student's identities. Additionally, the Kernel requested that the Court make its January 23, 2017 opinion and order final and appealable. On February 23, 2017, the circuit court denied the motion to alter, amend or vacate but made the January 23, 2017 order final and appealable. The Kernel appealed to this Court on February 27, 2017.

         Meanwhile, the circuit court had not ruled upon the AG's request for declaratory judgment regarding its authority to conduct an in camera inspection of all documents pertaining to the investigation of Harwood and a permanent injunction to enjoin the University from refusing to provide the AG with ...


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