UK’s assault on open government

President Eli Capilouto’s insistence that the University of Kentucky must sue its student newspaper to protect sexual abuse victims from unwanted public exposure may be sincere but it flunks Reality 101.

Meanwhile, UK’s flouting of the Kentucky Open Records Act in this and too many instances is damaging the university’s reputation and undermining public trust in Kentucky’s academic flagship.

Kudos to the three trustees who at a public meeting Friday broke from the board’s usual complaisance to question the administration’s response to the Kentucky Kernel’s reporting of how a professor, under investigation for sexually harassing and assaulting a student, was allowed to quietly resign and keep collecting his pay for months. The student newspaper obtained the documents through other means and has reported on the matter without publishing the victim’s name.

Capilouto’s impassioned assertion that UK is defending future victims’ rights is a red herring because the safeguards he demands have always been part of the Kentucky Open Records Act. The law exempts from public disclosure anything that would “constitute a clearly unwarranted invasion of personal privacy.” Names of victims and identifying information are routinely redacted. If redactions alone cannot protect a victim’s identity, an entire record can be withheld.

UK started lobbing grenades from behind its stone wall even before submitting to one of the first steps in the Open Records process, allowing review of the records by the Office of the Attorney General. AG decisions to withhold or disclose records have the force of law.

As faculty trustee Lee Blonder said, the AG might have agreed with UK and kept the records confidential.

Instead, as trustee Mark Bryant, a Paducah lawyer said, UK is creating the impression that it has something to hide.

UK’s hard line forced Attorney General Andy Beshear last week to intervene in UK’s lawsuit against the Kernel because, he said, UK’s position “stabs at the very heart of the open records law and this office’s ability to enforce it.”

The lawsuit in Fayette Circuit Court is UK’s only path to challenge Beshear’s ruling that the records are open. UK is suing to challenge at least three other AG rulings, including one obtained by the Herald-Leader for UK’s failure to keep minutes of a trustees meeting.

If UK’s refusal to share documents with the AG stands, Kentuckians’ right to open government would be undermined. Other public bodies would refuse to turn over records to the AG for review, and the AG would have no way to enforce transparency laws. “UK would create a silver bullet for any bad actor to entirely avoid the open records law,” Beshear said. “For a university to push such a position is entirely irresponsible, especially when that university touts a First Amendment center.”

Trustee David Hawpe, a former editor of the Kernel and The Courier-Journal of Louisville, said he would not seek a board vote on UK’s lawsuit against the Kernel because he had been warned that if he forced a vote Capilouto would resign. Capilouto later said he never threatened to resign. But board chairman Britt Brockman said that he told Hawpe that Capilouto “would potentially step aside rather than have a divided board.” So, UK’s board chairman fears that an open clash of ideas would mortally wound the leader of an academic institution that should be a hotbed of clashing ideas.

As Hawpe acknowledged, both sides have valid interests. Fear of exposure can intimidate victims into silence. But transparency and sensitivity to victims can co-exist when institutions are truly committed to both. Hiding the internal handling of such cases from scrutiny only invites more and worse abuse.

Lexington Herald-Leader

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