On July 11, the Kentucky Court of Appeals denied the University of Kentucky's June 5 Petition for Modification and Extension of the Court's May 17, 2019 (as modified 5/24), opinion in The Kernel Press, Inc. v University of Kentucky.

The university urged the Court of Appeals to "consider the Sexual Assault Survivors' assertion of their federal privacy rights" and requested a second oral argument "to assist the Court in understanding the full breadth" of those rights.

In support, the university argued:

"The story of a sexual assault is both painful and personal. The right to tell all, none, or some of that story belongs, not to the Kernel or the University, but to the Sexual Assault Survivors. Here, the Sexual Assault Survivors have told the Kernel to stop telling their story. The Kernel ignores their privacy rights, but this Court cannot.

The University accepts remand [to the circuit court] to determine which specific exemptions apply to each record in the Investigative file, but it is necessary for the Court to modify and extend its opinion so that the circuit court can properly apply the Sexual Assault Survivors' federal privacy rights"

On this basis, the university petitioned the court to delete three quoted "misstatements" from its opinion because they "do not accurately reflect the record" on appeal.

The university identified nine "critical points" from the record on appeal that were "either overlooked by or otherwise contrary to" the three statements in the court's opinion to which the university objects.

It then asked the Court of Appeals to "give express direction for the trial [circuit] court on remand so that it may take due account of the federal privacy rights asserted by the Sexual Assault Survivors."

The university's argument is premised on:

1) the sexual assault survivors broad privacy rights which it argued cannot be adequately protected by redaction of identifying information;

2) the assertion of those rights by the survivors; and

3)the court's failure to address those rights and the "chilling effect" on reporting that required disclosure will have.

The university petitioned the court to effectively reverse its opinion by acknowledging that "the Sexual Assault Survivors' federal privacy rights result in categorical prohibitions on disclosure, not an invitation to a balancing of interests under state law."

This, in fact, is how attorneys for the Kernel characterized the university's petition. The petition, they argued, does not seek correction of inaccuracies in statements of law or fact in the May 17 opinion, or an extension of the opinion "to cover matters in issue not discussed therein." Instead the petition seeks a full rehearing and a second oral argument.

Asserting that the court's May 17 opinion was accurate and does not warrant extension or modification, they reasoned:

"[T]his entire dispute stems from the decision of two students to approach the Kernel about [Professor] Harwood's assault on and harassment of them. Those individuals reached out to the Kernel through a spokesperson because they were 'unhappy that Harwood could be allowed to continue working at another university without the full results of the investigation following him.' They took the position that the documents should be disclosed, with the names and identifying information redacted."

As to the Kernel's intentions, the newspaper's attorneys maintained:

"The Kernel has not 'devolved' this matter 'into a public dispute that ignores the interests of the parties at the center of the controversy . . . . ' Instead, The Kernel responded to a request by the survivors to expose Harwood's misconduct after the University permitted him to resign. *While the University states that the survivors have asked the Kernel to stop 'invoking their story,' the story was, and remains about Harwood and his misconduct, and about the University's response to the accusations against him.* The University is not authorized, through assurances it may or may not have made to the complainants, to disregard the Open Records Act."

Well said. The University of Kentucky should stop treating its student newspaper, the Kernel, like a tabloid rag and accord it the deep respect it is due.

It should also show at least a modicum of respect for the open records law and the critically important purpose it serves.

When the University "went low" in suggesting that the Kernels' only goal was to publish salacious details of these grievous offenses against its students by one of its faculty, the Kernel "went high" by resisting the temptation to characterize the University's actions as a cover up aimed at protecting itself and/or Harwood.

The Court of Appeals properly decided these issues in it May 17 opinion. It reaffirmed that opinion by denying the university's June 5 petition on July 11.

The university should stop these delays and let this matter proceed per the Court's May 17 opinion.