An older article linked in yesterday's FERPA post in which President Capiluto shifts responsibility for the university's decision to sue The Kernel to a "quirk" in Kentucky open records law.

That "quirk" is the legal mechanism by which the media and the public challenge a public agency's denial of an open records request through the attorney general's office without — in most cases — associated court costs, attorneys' fees, and protracted litigation.

That "quirk" also relieves the courts of a substantial burden except in those cases where a public agency asserts "the indefensible position that the records are exempt because it says they are and must be believed."

This is how the Court of Appeals characterized UK's position in this case.

No one disputes the need to protect the identities of victims — certainly not The Kernel or the attorney general. Anyone who believes otherwise has neglected to review the record on appeal and, perhaps, imbibed too much institutional kool aid.

The Kernel v University of Kentucky is, like every other open records case, about the ability of the media or the public to scrutinize agency action — in this case, the university's response to allegations of sexual misconduct leveled by students against a professor.

Was the university's "quiet" settlement/exit strategy with the professor an appropriate response to the gravity of the students' allegations?

Again and again we remind agencies that, "the public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether public servants are indeed serving the public and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good."

In addition to the victims of the alleged sexual misconduct, there

are two other potential victims in the case.

The "victim" is not The Kernel, except to the extent that the university has waged a public relations campaign against it and may or may not have retaliated against its own journalism program and instructors in the program. The Kernel knew that it risked being hauled into court by the university if it prevailed in an appeal to the attorney general.

The victim is certainly not the university despite its cynical efforts to deflect blame on the open records law for its decision to sue its student newspaper.

The other "victims" are, first and foremost, the truth and, second, the laws aimed at securing the public's right to know the truth rather than blindly accepting that records containing the truth are protected because the university "says they are and must be believed"

Let's not let "FERPA fatigue" blind us to the greater issues these cases present.