In an opinion laden with exasperation with the stonewalling and lawless fish-tailing of the University of Kentucky, the Kentucky Supreme Court has affirmed a Court of Appeals' ruling that UK violated repeatedly the Kentucky Open Records Act. The case is University of Kentucky v. Kernel Press. The Court, in its unanimous opinion, also took to task the Fayette Circuit Court finding "clear error" in its fact findings.
The case began with two requests by the Kentucky Kernel newspaper under the Open Records Act for the university's investigative file regarding sexual harassment allegations made toward a former faculty member.
The university's stonewalling so offended the Court that it was moved to discuss the basic workings and duty of public universities and agencies to comply with the Open Records Act (ORA):
We also take this opportunity to reiterate the ORA obligations of a state agency, statutory obligations that were ignored or minimized by the University at every step in this case.
The Court also rejected the University's contention that a federal law, FERPA, applied to the entirety of the investigative file and precluded its production completely and totally, noting that:
Most courts have concluded that records relating to employee misconduct do not constitute student educational records because they directly relate to the activities and behaviors of employees[.]
The FERPA "education record" exclusion was clearly not intended as an "invisibility cloak" that can be used to shield any document that involves or is associated in some way with a student, the approach taken by the University in this case.
The case was sent back to the Fayette Circuit Court with directions.