The University of Kentucky and its independent student-run newspaper, The Kernel, are once again squaring off in an open records dispute in the courts.
https://kykernel.com/108714/showcase/kernel-sues-uk-over-withheld-recor…
Unlike the 2016 open records case pitting the university against the newspaper, The Kernel has gone on the offensive in this dispute.
Initiating action in the Fayette Circuit Court on November 25 -- and apparently bypassing administrative review by the Kentucky Attorney General -- The Kernel is seeking a judicial determination that the university willfully violated the open records law in denying Editor-in-Chief Abbey Cutrer's October 2 records request. Following the September 25 arrest of Chase McGuire, "who is not a UK student, for the alleged rape and strangulation of a UK student in her Chellgren Hall dormitory," Cutrer requested sign-in logs identifying "non-UK student guests that entered Chellgren Hall on September 20 between the hours of midnight and 8 p.m." and records of "any occasion where McGuire entered a UK residential hall this academic year."
https://kykernel.com/105640/news/man-arrested-for-rape-and-strangulatio…
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=51394
The university denied Cutrer's request, arguing that the privacy rights of non-student residence hall guests is superior to the public's interest in disclosure of records that verify university compliance with non-resident dormitory visitor protocols. Additionally, the university asserted that the requested records are shielded from disclosure by the much used -- some would say abused -- "preliminary" documents exceptions. There is no indication whether the university maintains that the disputed records are preliminary drafts, or notes, or correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency and/or
preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=54126
Cutrer and The Kernel disagree, asserting that "the public interest in the disclosure of this information plainly outweighs any asserted reason for refusing to disclose it."
In an analysis written shortly after The Kernel reported on its latest open records dispute with the university, the Kentucky Open Government Coalition wrote:
"UK failed to weigh the competing public interest — as Kentucky’s courts have admonished it to do — in monitoring university compliance with residence hall policy to ensure a safe student environment against the unspecified 'invasion of personal privacy' to determine if the invasion of privacy resulting from release of sign in sheets was 'clearly unwarranted.'
"It was not.
"Further, we question the application of the preliminary documents excepts — which exists to shield a public agency’s pre-decisional, deliberative records — shields residence hall sign in sheets. There are, to our knowledge, no prior Kentucky Attorney General’s open records decisions on the issue of access to public university residence hall sign in sheets — perhaps video — and certainly no Kentucky caselaw. But construing the preliminary documents exceptions strictly, as the open records law requires us to do , we can only conclude that their invocation here is a stretch — and a colossal one at best.
"The responsive records are not preliminary documents.
"This leads us to ask if we are on the cusp of another protracted legal battle pitting the University of Kentucky against The Kernel– a battle that will almost certainly end in the University’s defeat following years of legal wrangling (and the expenditure of taxpayer dollars to defend its specious position — not to mention yet more damage to its tarnished 'brand'). The Kernel is resolute:
“'Our first obligation as journalists is to the truth and our loyalty is to the people. The students have a right to know if protocols are being followed in dorms.'
"How entrenched the university is in its position remains to be seen. The Kernel has asked that it reconsider its denial. Will it concede defeat and depart the field, or, [dig in its heels]?"
https://kyopengov.org/blog/it-deja-vu-all-over-again-university-kentuck…
The university subsequently refused to reconsider its position, prompting The Kernel to file suit in Fayette Circuit Court on November 25.
Let's hope we can count the delay in fulfilling the public's right to know occasioned by the university's recalcitrance in days, weeks, or even months, but not in years -- as in the six year legal contest between the University of Kentucky and The Kernel that culminated in a major Kentucky Supreme Court dressing down of the university in Univ. of Ky. v. Kernel Press, Inc.
