Arguments continue between WKU, College Heights Herald, AG's Office

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BOWLING GREEN, Kentucky (WBKO) -- Lawyers for Western Kentucky University (WKU) appeared in court Friday for a lawsuit against The College Heights Herald.

The lawsuit stems from a denied open records request to the university by the student-run newspaper regarding investigations into sexual misconduct allegations among faculty and staff.

In an appeal to the Attorney General's Office, WKU was required to hand the documents of the investigations over, but the university did not comply citing the privacy of students involved.

"With our technology today, we all know how easy it is to find out information," said WKU Attorney, Ena Demir. "There's nothing that prevents somebody from going on Facebook, going to the Herald's comment section and identifying that student by reading those records."

Demir also cited federal policy that prohibits public disclosure of education records as it reads under the Family Educational Rights and Privacy Act, or FERPA (More on that here), and the Open Records Act, as described here.

The College Heights Herald, and the AG's Office argued that a redacted version of the investigation documents would suffice. However, the AG's office never received the documents, so they were not able to determine whether or not the investigations would be subject to public disclosure.

The AG's Office added that if the information was released only to them, nobody else would have access, which would not affect the privacy of the students involved.

"The attorney general, by statute and regulation, never can disclose the records he reviews in an in camera review and open record appeal," said S. Travis Mayo, representing the AG's Office, "and in fact, he has to destroy them. So the thought that the Attorney general would ever publicly disclose those records is unfounded."

Mayo called WKU's role in the appeal a "flat-out refusal", which led to them not being able to read a single page of the documents or determine where redactions may be appropriate.

Michael Abate represents the College Heights Herald. He said Friday that he does buy into WKU's reasoning behind not releasing the appropriate information.

"Every day, in state and federal courts, agencies redact documents to remove identifying information," he said, "and so when the university suggests that it couldn't possibly redact these documents without revealing the identity of students is, I think that argument is just hard to take in."

WKU maintained that these investigations are confidential, but nothing is stopping students from sharing that information on their own, and Ena Demir pointed out why she thinks none of them have.

"We have not had any complaints, internal or otherwise, from a student who was dissatisfied with how the Title IX investigation was handled," she said, "and I think there is a reason for that and that's because WKU does an excellent job investigating."

She also added, "We do whatever we can to protect the identity of those students. If these students want to come out and tell their story on their own, that's one thing, but WKU is not going to voluntarily release this type of sensitive information."

In a counter-argument, Michael Abate explained why he feels so strongly for the investigations to be released as public record.

"The public absolutely has the right to know what allegations are being made against public employees paid public salaries, who are entrusted to care for students on their campuses," he said.

He added that he believed that WKU's response to the College Heights Herald was not only "disingenuous", but also "extraordinarily dangerous."

There were approximately 20 cases of sexual misconduct investigated by the university. Six staff and faculty members that were found to have violated WKU policy have since left the school or retired.

Of those 20 cases, 16 of them involved students, which are the cases that WKU argued would go against FERPA. The other four cases, they argued, are against other policies.

After hearing arguments Friday, Warren Circuit Court Judge Steve Wilson will now rule on whether or not the information is public record as it pertains to FERPA.

It's unclear whether the four cases that were staff-to-staff allegations will be ruled on.



 
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