WKU ordered to turn over documents related to sexual misconduct investigations – WKUHerald.com

The Warren Circuit Court has ordered WKU to produce “minimally redacted copies” of Title IX sexual misconduct investigations, as requested by the College Heights Herald in 2016. The ruling by Circuit Judge Chris Cohron comes seven and a half years after the university sued the Herald, seeking to keep the reports of the investigations secret.

In 2016, the Herald requested documents for “all investigative records for all Title IX investigations into all allegations of sexual misconduct, including: sexual abuse, sexual harassment, sexual exploitation and/or stalking against employees of Western Kentucky University within the past five years.” The university denied the request at the time.

Following this rejection, the Herald appealed to the Kentucky Attorney General’s office, which ordered that the documents be turned over “except for the names and personal identifying information of the complainant and witnesses.” Instead of turning over the documents as ordered by the Attorney General, WKU appealed by suing the student newspaper in state court in Warren.

A decision in that case was delayed in part because of a similar lawsuit brought by the University of Kentucky against its student newspaper, the Kentucky Kernel. The Kentucky Supreme Court ruled in favor of the Kernel in 2021.

During the lawsuit, WKU turned over some documents to the Herald, but the newspaper objected, saying that many of the documents contained excessive redactions that were illegal under the Kentucky Open Records Act.

“WKU had a plausible, good faith justification for the documents it redacted and cooperated with (the Herald) … to produce documents in a manner satisfactory to all parties. (.) Although WKU’s reliance in this matter was misplaced, there is little evidence to suggest that its failure to disclose was flagrant, bad faith, or intentional in violation of the (Open Records Act),” the court ruling said.

Nevertheless, the court ruled that the university must provide the Herald with documents because, as the ruling stated, “if unsubstantiated claims in some cases warrant greater protection, there are perverse incentives for government agencies to declare claims unsubstantiated in order to avoid public scrutiny.”

“Revealing the identities of those wrongly accused in unsubstantiated claims does not constitute an unwarranted invasion of privacy because ‘Kentuckians have a significant interest in ensuring that public institutions … respond appropriately to allegations of sexual harassment by a public official,’” the ruling said.

The university accepted the court’s ruling.

“We are pleased that this matter has been resolved and appreciate the clarity the court has provided in this matter,” said Jace Lux, a university spokesperson.

Michael Abate, a First Amendment attorney with Kaplan, Johnson, Abate and Bird, the Louisville law firm that represented the Herald in the case, agreed with the court’s decision.

“We are very pleased with the content of the ruling and we believe that the court is completely right and that the university has abused the Government Information (Public Access) Act from day one to withhold information,” said Abate.

The Kentucky Press Association’s Legal Defense Fund helped cover the Herald’s legal fees, paying $24,000. Herald alumni also donated more than $7,000 toward the Herald’s legal fees through the Student Press Law Center in Washington, D.C. A $5,000 grant also came from the Society of Professional Journalists’ Legal Defense Fund.

Abate also stressed the importance of the Kentucky Open Records Act and its need to provide transparency about government affairs.

“The reason the data protection law exists is not just to know what government employees are doing, but to assure ourselves that serious allegations are taken seriously and investigated thoroughly,” Abate said.

Editor-in-Chief Price Wilborn can be reached at (email address)Follow him on X at @pricewilborn