University of Kentucky v. the Kernel Press, Inc. D/B/A the Kentucky Kernel ( 2021 )

RENDERED: MARCH 25, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0468-DG
UNIVERSITY OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
v. NO. 2017-CA-0394
FAYETTE CIRCUIT COURT NO. 16-CI-03229
THE KERNEL PRESS, INC., D/B/A APPELLEE
THE KENTUCKY KERNEL
OPINION OF THE COURT BY JUSTICE HUGHES
AFFIRMING
In 2015 two University of Kentucky graduate students complained of
sexual assaults by Dr. James Harwood, a professor in the University’s College
of Agriculture. The University investigated the allegations, assembled an
investigative file and prepared a final investigative report detailing its findings.
In February 2016, the University reached a separation agreement with
Harwood who left the University with certain continuing financial benefits and
with tenure intact. Having received information regarding the foregoing events,
The Kernel, the University’s student-run newspaper, filed two Open Records
Act (ORA) requests pursuant to Kentucky Revised Statutes (KRS) 61.870-.884
seeking disclosure of various documents, including all documents pertaining to
the University’s investigation of Harwood. Although the University provided
some personnel records and a copy of Harwood’s resignation letter and
separation agreement, a second request for the investigative file was denied.
The Kernel requested review by the Attorney General pursuant to KRS
61.880(2), and the Attorney General, after considering the University’s legal
memorandum, ordered the University to disclose the records with appropriate
redactions. The University declined and sought judicial review.
Presented with the University’s arguments and The Kernel’s response,
the Fayette Circuit Court conducted an in camera examination of the
investigative file maintained by the University and concluded that the entire file
was protected as “education records” under the Family Education Rights and
Privacy Act (FERPA), 20 U.S.C. § 1232g. The Court of Appeals reversed the
trial court’s order, finding that the University failed in the first instance to
comply with its statutory obligations under the ORA and, when challenged,
failed to meet its burden of showing that the requested records are exempt
from disclosure. On discretionary review, we too find that the University failed
to comply with its obligations under the ORA and that the trial court clearly
erred in finding the entire investigative file exempt from disclosure. For these
reasons more fully explained below, we affirm the Court of Appeals and remand
this case to the trial court for further proceedings in accord with the ORA and
this Opinion.
2
FACTS AND PROCEDURAL HISTORY
In the summer of 2015 the University received complaints from two
female graduate students (Jane Doe 1 and Jane Doe 2)1 concerning allegations
of sexual assault committed by Dr. James Harwood, a tenured professor in the
College of Agriculture. These instances of alleged misconduct occurred at off-
campus conferences related to the graduate students’ field of study. As
required by Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§
1681-1688 (Title IX), the University’s Office of Institutional Equity and Equal
Opportunity (EEO) launched an investigation of the allegations. EEO informed
the two graduate students that the University would do its best to ensure their
anonymity. Jane Doe 1 and Jane Doe 2 were further assured that only
Harwood and those in the University with a legitimate need to know would be
made aware of their complaints. The EEO also informed witnesses that the
University would take steps to protect their privacy and to protect against
disclosure of personally identifiable information to the public at large.
In the course of its investigation, the EEO assembled an investigative file
containing the investigative report; letters from the EEO to specific parties
concerning the allegations and final outcome of the investigation; letters
written by the EEO concerning the status of developments in the case; emails
from the EEO to the two graduate students and other witnesses; the EEO’s
1 The two graduate students have filed an amici brief as “amici curiae Jane Doe
1 and Jane Doe 2.” We adopt their terminology in this Opinion and in some instances
refer to them collectively as “the graduate students” or “the Jane Does.”
3
interview notes; documents supplied by students and witnesses, including the
Jane Does; and documents supplied by Harwood. The 470-page investigative
file contains student-specific information, including explicit details of the
alleged misconduct, witnesses’ names and initials, phone numbers, email
addresses, home addresses, travel plans, research projects, photographs, text
messages, medical information about a party’s family member, information
about the parties’ personal lives, and details about relationships and
interactions among people in the relevant department at the College of
Agriculture.
In a final investigative report, the EEO concluded that sufficient evidence
existed to support a finding that Harwood assaulted and harassed both
graduate students. After the EEO relayed its findings to Harwood, he resigned
prior to final adjudication. The University and Harwood reached a separation
agreement on February 26, 2016 that provided that the University would not
initiate proceedings to revoke Harwood’s tenure; Harwood would continue to
receive his salary with benefits until August 31, 2016, or until he found
employment elsewhere if that occurred earlier; and Harwood and his family
would continue to receive health benefits from the University through
December 31, 2016, or the date Harwood started his new job, whichever came
first. Realizing that Harwood could deny the allegations, leave the University
quietly and seek academic employment elsewhere, Jane Doe 1 and Jane Doe 2
wanted to remedy a perceived flaw in the Title IX reporting and investigation
process by drawing attention to the matter.
4
The Jane Does reached out to The Kernel through an intermediary, with
the goal of exposing Harwood so that his misconduct would not remain hidden.
On March 21, 2016, The Kernel submitted the following ORA request to the
University:
I am requesting an opportunity to obtain copies of all records
detailing Dr. James D. Harwood’s resignation amid accusations of
sexual assault. This request includes but is not limited to: the
Title IX complaints filed by the two female students, any
reprimands and any commendations, Harwood’s personnel file,
and any documents detailing the University of Kentucky’s
investigation into allegations of sexual assault, sexual harassment,
or allegations of alcohol abuse committed by Harwood.
In response, the University provided the student newspaper with records from
its Human Resources Department and personnel records from the Department
of Agriculture with redactions and omissions of sensitive personal information.
The University also provided The Kernel with copies of Harwood’s separation
agreement and resignation letter, confirming the University had indeed
investigated and addressed the two graduate students’ allegations. However,
the University declined to produce any other documents because it deemed
them “preliminary records,” a broad category that encompassed handwritten
notes, correspondence and memoranda; records covered by the attorney-client
privilege; and/or records containing personally identifiable student information
claimed to be protected by FERPA, 20 U.S.C. § 1232g, and its regulations.2
2 The first sentence of the University’s ORA response erroneously labeled the
request improper: “Your request for “. . . all records . . .” is improper under the Open
Records Act.” To be clear, The Kernel’s request was not improper. ORA requests
routinely seek “all documents pertaining to [subject matter].” The responsibility for
identifying responsive records and any applicable exception lies with the receiving
public agency, not the requester.
5
None of these withheld documents were specifically identified in the
University’s single-paragraph response.
On April 7, 2016, The Kernel again requested copies of all records
detailing the University’s investigation of Harwood. The University again
refused in a single-paragraph response, reasoning that The Kernel’s requests
were for preliminary records which are exempt from disclosure. KRS
61.878(1)(i) and (j). The University also claimed some documents are protected
pursuant to KRS 61.878(1)(a) because they contain personal information, and
other documents are protected by Kentucky Rule of Evidence (KRE) 503
because they are considered attorney-client privilege/work product material.
Notably, the University did not detail the specific contents of the investigative
file nor did it invoke FERPA, which it had previously mentioned, or other
federal laws which it would later raise as grounds for nondisclosure.
The Kernel appealed the matter to the Attorney General pursuant to KRS
61.880(2). On May 26, 2016, the Office of the Attorney General sent the
University a letter with inquiries regarding its refusal to disclose the records,
requesting a general description of how the University investigates sexual
harassment/sexual assault claims against tenured professors, and what
challenges the University believed impeded its ability to redact personally
identifiable information. The Attorney General also requested copies of various
documents, including the documents already disclosed to The Kernel and the
documents the University refused to disclose so the basis for nondisclosure
could be substantiated. KRS 61.880(2)(c). In response, the University raised
6
new arguments in a 36-page memorandum but refused the Attorney General’s
request for copies of both the disputed and undisputed records. Again, the
University failed to delineate the withheld documents. The Attorney General
later noted that the University did not directly or, in some cases, even
indirectly, address that office’s inquiries.
On August 1, 2016, the Attorney General rendered a decision in favor of
The Kernel. In Re: Kentucky Kernel/University of Kentucky, Ky. Op. Atty. Gen.
16-ORD-161 (Aug. 1, 2016). The Attorney General held that the University
failed to meet its burden of proof in denying The Kernel’s request. The Attorney
General directed the University to “make immediate provision for [The Kernel’s]
inspection and copying of the disputed records, with the exception of the
names and personal identifiers of the complainant and witnesses . . .” per KRS
61.878(1)(a).
Pursuant to KRS 61.882 the University sought review of the Attorney
General’s decision in the Fayette Circuit Court, arguing that the documents
withheld from The Kernel are exempt from disclosure under the ORA. The
Attorney General intervened in the action to seek a declaration of rights on the
issue of the Attorney General’s authority to require government agencies to
submit to the Attorney General for in camera review those documents withheld
from ORA requests.3
3 The Attorney General’s authority to require government agencies to submit
documents withheld from ORA requests for substantiation purposes through in
camera review was an issue at the trial court and also addressed in the Court of
Appeals’ opinion. The Attorney General is not a party to this appeal and that issue is
not before us. We note, however, that the appellate court generally upheld the
7
On November 17, 2016, the Jane Does filed an amici brief before the trial
court asserting a position that aligned with the University’s. They stated that
what began as The Kernel’s journalistic search for information had evolved into
a public dispute that ignores their interests, noting that The Kernel had
published 28 articles about Harwood’s misconduct between April and
November 2016 despite their requests to stop. They explained that each article
forces them to relive the trauma they suffered and that the confidentiality
offered to the two graduate students during the EEO’s investigation of Harwood
was integral to their decision to come forward and report the incidents. The
Jane Does feared that releasing the investigative file documents to The Kernel,
even with redaction, would allow the public to quickly deduce their identities.
On January 23, 2017, the Fayette Circuit Court entered an order
reversing the Attorney General’s order. The trial court determined that two of
the exceptions to the ORA were relevant to the documents in question: KRS
61.878(1)(a), which excludes the disclosure of “[p]ublic records containing
information of a personal nature where the public disclosure thereof would
constitute a clearly unwarranted invasion of personal privacy . . .” and KRS
Attorney General’s right to in camera review, observing: “The [ORA] does not confer
subpoena power on the AG. Perhaps the General Assembly assumed state agencies
would comply with such requests to further the interest in transparency. If that was
the assumption, the University has proven it wrong.” Kernel Press, Inc. v. University of
Kentucky, 2017-CA-000394-MR, 2019 WL 2236421, at *10 (Ky. App. May 17, 2019).
The Court of Appeals recognized one valid exception to the University’s obligation to
submit withheld documents for review by the Attorney General, namely FERPA-
protected “education records with unredacted personally identifying information the
University is prohibited from releasing” pursuant to 20 U.S.C. § 1232g(b)(1)(c) and 34
Code of Federal Regulations (C.F.R.) § 99.31(a)(3) and (9). Id. at *11.
8
61.878(1)(k), which excludes the disclosure of “[a]ll public records or
information the disclosure of which is prohibited by federal law or regulation
. . . .” By virtue of this second exclusion, FERPA, a federal law that controls
the use and disclosure of student education records, is incorporated into the
ORA’s list of exemptions. 20 U.S.C. § 1232g. Under FERPA, no federal funds
can be provided to an educational institution that releases education records or
personally identifiable information without the appropriate consent. 20 U.S.C.
§ 1232g(b)(1). An education record is defined as a record that is “directly
related” to a student. 20 U.S.C. § 1232g(a)(4)(A)(i).
After conducting an in camera review of the investigative file, the trial
court determined that the documents are “educational records” pursuant to
FERPA. The trial court was persuaded by the holding in Rhea v. District Board
of Trustees, 109 So. 3d 851, 858 (Fla. Dist. Ct. App. 2013), which adopted a
broad construction of “directly related.” 20 U.S.C. § 1232g(a)(4)(A)(i). The
Florida District Court concluded that “directly related” is not a “primarily
related” test and that a record can relate directly to both a student and a
teacher. Rhea, 109 So. 3d at 857-58.
In its analysis, the trial court first found that the investigative file relates
to a former University professor but also to the two graduate students. Some
documents describe their perceptions of the alleged events and the subsequent
investigation. The file also contains documents with information about classes,
area of study, and matters specifically related to the educational experiences of
Jane Doe 1 and Jane Doe 2. Focusing on references to students, the trial court
9
concluded that the various documents at issue are educational records
pursuant to FERPA.
The trial court further ruled that given the nature of the documents in
the investigative file, coupled with the nature of the facts underlying the
investigation, even disclosure of redacted documents would not offer adequate
protection:
The record at issue is thoroughly interwoven with
explicit details of the alleged sexual assault and other facts
submitted by parties and witnesses. Although the record
also contains information such as names, addresses, and
phone numbers, which could reasonably be redacted, the
record is so extensively laced with details of the alleged
assault that redaction alone would not protect these
complaining witnesses. Further, [the] size of the graduate
program from which these allegations stem is small; the pool
of female graduate students in this program is even smaller.
When also factoring in that both allegations originated at
specific dates and at specific off-campus conferences, the
possible identity of a complaining witness becomes even
easier to pinpoint. For instance, it would be simple for one
to deduce the identities of the complaining witnesses by
requesting financial records from the off-campus
conferences. Analyzing the totality of the specifics [sic] facts
at hand, if the records are turned over, even in (redacted
form), the identities of the complaining witnesses will be
known within reasonable certainty.
The trial court reversed the Attorney General’s decision, leaving The Kernel
with no access to any part of the investigative file.
Two weeks following a hearing on the matter and one day after the trial
court entered its January 23, 2017 order, the University for the first time
prepared and submitted an index of the “Harwood Investigative File.” The
University apparently did so only because it was directed to by the trial court.
The index, filed over nine months after The Kernel made its first ORA request,
10
includes bullet points with brief descriptions of the contents of each of the ten
sections of the investigative file. Examples of document descriptions include
“[e]mail correspondence between Complainant 1 and Harwood regarding
Harwood’s alleged sexual misconduct”; “social media post from the event at
which Complainant 2 alleges Harwood’s sexual misconduct occurred”; and
“Alexander notes from meeting with Student A.” The index also listed the
number of pages in each section of the investigative file. Within each section of
the index the University claimed all material was exempt, listing the very
same seven exemptions for each section and thus every document in the
investigative file:
The records indexed under this tab are exempt in whole or in part
pursuant to FERPA, [the Violence Against Women Act], [the
Jeanne] Clery [Disclosure of Campus Security Policy and Campus
Crime Statistics Act], and/or the U.S. Constitution consistent with
KRS 61.878(l)(k). The records are further exempt in whole or in
part pursuant to KRS 61.878(1)(a), (i) and/or (j) as preliminary
records and/or records for which disclosure would create an
unwarranted invasion of personal privacy.
While most of the documents in the investigative file are Martha Alexander’s4
notes and correspondence from communicating with and interviewing the two
graduate students and witnesses, the file also contains other documents such
as the University’s policies on harassment and sexual assault, Harwood’s
curriculum vitae, and excerpts from the user manual of a camera owned by
one of the two graduate students.
Martha Alexander, the University’s Title IX Deputy Compliance Officer, was
4
eventually the author of the three Final Determination Letters–individual letters
addressed to Harwood, Jane Doe 1 and Jane Doe 2.
11
Based on the newly-provided index, The Kernel filed a motion to alter,
amend or vacate the trial court’s order insofar as it concluded that every part of
the Harwood Investigative File was protected from disclosure and no part of the
file could be redacted so as to protect the Jane Does’ identities. The trial court
denied the motion but made its January 23, 2017 order final and appealable.
As noted, The Kernel appealed to the Court of Appeals where it received a very
different ruling.
The Court of Appeals held that the trial court’s finding that all records
were exempt from disclosure was not supported by substantial evidence. The
University failed to explain how specific exemptions applied to particular
records, thereby failing to fulfill its statutory ORA responsibilities under KRS
61.880(1), which requires an agency to state the “specific exception authorizing
withholding of the record.” Quoting Kentucky New Era, Inc. v. City of
Hopkinsville, 415 S.W.3d 76, 88 (Ky. 2013), the Court of Appeals held the ORA
does not permit “the nondisclosure of an entire record or file on the ground
that some part of the record or file is exempt[.]” The Court of Appeals
emphasized that the University belatedly filed a deficient index of the withheld
records and did not even attempt to comply with the ORA in any meaningful
way. The appellate court also concluded that the trial court made an
erroneous factual finding that all the records in the investigative file are
covered by FERPA. The Court of Appeals remanded the case to the trial court
for the University (1) to separate nonexempt records from records claimed
exempt, (2) to redact personally identifying information from exempt records,
12
and (3) to the extent possible without disclosing exempt information, state with
exactness why any withheld record is exempt from disclosure.5
Having granted discretionary review, heard oral arguments and carefully
considered the record, we affirm the Court of Appeals. 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.
ANALYSIS
The crux of this case is the interaction of Kentucky’s ORA, a statutory
scheme that allows public access to records maintained by public agencies
such as the University, and FERPA, a federal statute that prohibits the
disclosure of a student’s educational records without their consent. The trial
court made a factual finding that the entire Harwood Investigative File
constituted “educational records” under FERPA, and after further concluding
that redaction could not adequately protect the two graduate students’ privacy
rights, deemed all documents within the file totally exempt from disclosure.
We review a trial court’s factual finding in these circumstances for clear error.
New Era, 415 S.W.3d at 78. Here, the trial court clearly erred.
I. The Open Records Act and Public Agency Obligations
5 The appellate court also observed that although The Kernel had not requested
the statutorily-authorized costs and attorney fees or penalties, “if requested upon
remand and upon a finding that the University willfully violated the [ORA], those
amounts may be awarded.” Kernel Press, 2019 WL 2236421, at *11.
13
The ORA, KRS 61.870-.884, was enacted in 1976 to give the public
access to public records in the possession of a public agency, such as the
University. KRS 61.871 states the General Assembly’s intent as follows:
The General Assembly finds and declares that the basic policy of
KRS 61.870 to 61.884 is that free and open examination of public
records is in the public interest and the exceptions provided for by
KRS 61.878 or otherwise provided by law shall be strictly
construed, even though such examination may cause
inconvenience or embarrassment to public officials or others.
The ORA generally favors disclosure. See Ky. Bd. of Exam’rs of Psychologists v.
Courier–Journal, 826 S.W.2d 324 (1992). However, the right to examine public
records is not absolute and KRS 61.878(1) provides fourteen categories of
public records that are “excluded from the application of KRS 61.870 to
61.844,” including:
(a) Public records containing information of a personal nature
where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy;
....
(i) Preliminary drafts, notes, correspondence with private
individuals, other than correspondence which is intended to give
notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in
which opinions are expressed or policies formulated or
recommended;
(k) All public records or information the disclosure of which is
prohibited by federal law or regulation[.]
As noted, the General Assembly has expressly declared that these exceptions
“shall be strictly construed.” KRS 61.871. A public agency can deny an ORA
request based on one or more of the statutory exceptions but the agency’s
14
obligation in those circumstances is clear: “An agency response denying, in
whole or in part, inspection of any record shall include a statement of the
specific exception authorizing the withholding of the record and a brief
explanation of how the exception applies to the record withheld.” KRS 61.880.
“The agency’s explanation must be detailed enough to permit the court to
assess its claim and the opposing party to challenge it.” New Era, 415 S.W.3d
at 81. Moreover, “[t]he public agency that is the subject of an Open Records
request has the burden of proving that the document sought fits within an
exception to the Open Records Act.” Hardin Cty. Sch. v. Foster, 40 S.W.3d 865,
868 (Ky. 2001).
The Kernel requested the Harwood Investigative File, in part, to
understand how the University handled the students’ complaints and the
investigation. The Kernel contends that the University’s actions prior to
entering into the separation agreement with Harwood should be made public.
The public’s right to know how effectively public institutions perform their
taxpayer-funded functions is unquestionably central to the ORA.
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 the public servants are indeed serving the
public, and the policy of disclosure provides impetus for an agency
steadfastly to pursue the public good.
Bd. of Exam’rs, 826 S.W.2d at 328.
Here, two students at a state-funded university alleged they were
sexually assaulted by a professor, a public employee, who committed the acts
at work-related conferences. The public interest in how promptly, thoroughly
15
and effectively the University responded to those serious allegations is manifest
but that does not translate into automatic disclosure of all requested
documents. While the ORA favors disclosure, “the policy of disclosure is
purposed to subserve the public interest, not to satisfy the public’s curiosity
. . . .” Id. The University maintains that the public interest has been served in
this case, the “public already knows all it needs to know” and further
disclosures would invade the Jane Does’ privacy rights. The Kernel responds
that it has no interest in revealing the two students’ identities or harming them
in any way. Rather, The Kernel’s primary objective is to understand how the
University handled the complaints, investigated the claims and protected the
two graduate students as well as any other individuals at the University. In
this vein, the newspaper contends the public has a strong interest in the
investigatory methods used by a public university in cases such as this
generally and in determining specifically whether the University complied in
this case with any applicable state and federal laws, including Title IX.6
Competing interests are at the core of every ORA case and judicial
resolution–the eventual balancing of those interests within the parameters laid
out by the legislature–is only achieved when the public agency complies fully
6 Amici curiae Kentucky Press Association, Student Press Law Center, Society
of Professional Journalists, Reporters Committee for Freedom of the Press, and News
Leaders Association have submitted a brief emphasizing accountability and discussing
the nationwide interest in similar cases which often become known through
newspaper coverage following open records requests. They pointedly note that other
state universities–including Eastern Kentucky University, Murray State University,
Northern Kentucky University and the University of Louisville–have released records
exactly like those at issue here, redacted as appropriate, with no adverse
consequences under FERPA.
16
with its statutory obligations and this Court’s precedent. In City of Fort
Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013), we rejected the
proposition that a public agency could invoke a statutory exemption to clothe
an entire investigative file with protection from disclosure, thereby avoiding a
document-by-document review and detailed response to the ORA requester.
Although that case involved a different ORA exemption than those at issue in
this case, it merits consideration as we address the University’s one-paragraph,
four-sentence response to The Kernel’s request for an investigative file that was
ultimately determined to contain 470 pages of documents of varying types.
In City of Fort Thomas, id. at 846, the Cincinnati Enquirer newspaper
made an ORA request to the City of Fort Thomas seeking to inspect and copy
the entire police file generated during a high-profile homicide investigation. At
the time, the defendant had been convicted and waived her right to appeal but
she had not yet been sentenced. Id. The City denied the request, claiming the
exemption to disclosure of records in KRS 61.878(1)(h), which excludes
“records of law enforcement agencies . . . that were compiled in the process of
detecting and investigating statutory . . . violations if the disclosure of the
information would harm the agency . . . by premature release of information
used in a prospective law enforcement action.” Id. at 846-47. The circuit court
ruled in favor of the City, but the Court of Appeals remanded for a more
particularized consideration of the documents in the police file, rejecting the
City’s blanket rationale for nondisclosure. Id. at 847.
17
Similarly, this Court held that a police department’s investigatory file is
not categorically exempt from disclosure under the ORA merely because it
pertains to a prospective enforcement action.7 Id. at 849. Rather, the agency
must articulate a factual basis for applying an exemption, explaining how the
release poses a risk of harm to the agency in a prospective action. Id. at 851.
The agency is not required to justify nondisclosure on a line-by-line or even
document-by-document basis. Id. With respect to voluminous requests, “it is
enough if the agency identifies the particular kinds of records it holds and
explains how the release of each assertedly exempt category would harm the
agency in a prospective enforcement action.” Id. Notably, the police file at
issue in City of Fort Thomas was estimated to consist of thirty boxes of
documents.
While City of Fort Thomas involved a different ORA exemption, the
Court’s holding is nonetheless instructive as we review what occurred in this
case. The University responded to The Kernel’s second ORA request, the April
7, 2016 request, with one paragraph:
RESPONSE: Please be advised that all records detailing the above-
referenced investigation from the University’s Office of Institutional
Equity and Equal Opportunity are unable to be released pursuant
to KRS 61[.]878(1)(i) and (j). These records are considered
preliminary drafts, notes, correspondence with private individuals,
other than correspondence which is intended to give notice of a
final action of a public agency; or preliminary recommendations,
and preliminary memoranda in which opinions are expressed or
policies formulated or recommended and are exempt from
7 The City reasoned that while the defendant’s conviction was final and
nonappealable, a collateral attack pursuant to Kentucky Rule of Criminal Procedure
(RCr) 11.42 remained prospectively available.
18
disclosure. Additionally, some documents in the file are protected
pursuant to KRS 61.878(1)(a), as they contain information of a
personal nature where the public disclosure thereof would
constitute a clearly unwarranted invasion of personal privacy.
Finally, some documents are protected pursuant to the Kentucky
Rules of Evidence 503, as they are considered attorney-client/work
product privileged and are exempt from disclosure.
No effort was made to itemize the contents of the Harwood Investigative File or
even to identify “the particular kinds of records it holds,” id., and, curiously,
the University seemingly abandoned any reliance on FERPA or other federal
statutes it would later raise as grounds for nondisclosure. When The Kernel
sought review by the Attorney General, the University provided a legal
memorandum outlining its Title IX obligations and its position on several ORA
exemptions as well as FERPA and other federal statutes, but it still offered no
description of the various documents in the 470-page investigative file and how
they individually or by category qualified for an exemption. Indeed, an index of
the contents of the Harwood Investigative File was not forthcoming until after
the circuit court had ruled that the file did not have to be disclosed and only
then at that court’s direction. Even then while the index listed and categorized
the documents in the investigative file, the same boilerplate, multiple-grounds
exception, quoted above, was claimed for every single document in the file.
Simply put, this is not how the ORA process works.
The University’s initial, single-paragraph assertion of a blanket
exemption to disclosure of the entire Harwood Investigative File was wholly
insufficient. While a line-by-line or document-by-document explanation is not
necessarily required in every case, in this particular case the University had
19
only 470 pages to identify/categorize with an explanation of how a particular
exemption or exemptions justified withholding the particular document or
category of documents. Later, at the direction of the trial court, the University
finally offered specific document descriptions, identifying for example, “email
correspondence between Complainant 1, Student A and Harwood regarding the
night Complainant 1 alleges sexual misconduct occurred”; “social media post
from the event at which Complainant 2 alleges Harwood’s sexual misconduct
occurred”; and “Final Investigative Report.” The obligation to obtain this level
of response from the public agency is not the trial court’s, but rather the
agency’s obligation in the first instance, a statutory obligation. Here the entire
file was treated as a single record, like the investigative file in City of Fort
Thomas, a “record” that the University maintained and would neither delineate
nor produce. We reiterate that a public agency has the obligation to prove that
requested documents fit within an exception to the ORA. Foster, 40 S.W.3d at
868. Under Kentucky law, the University’s response to The Kernel’s request
was required to be “detailed enough to permit the court to assess its claim and
the opposing party to challenge it.” New Era, 415 S.W.3d at 81. The University
failed to meet this requirement.
In essence, the University treated the Harwood Investigative File as if it
were one giant record, unable to be separated or compartmentalized when in
fact the investigative file is a 470-page collection of various types of records.
Grouping all the documents together as one record to avoid production is
patently unacceptable under the ORA. KRS 61.878(4) specifically requires that
20
“[i]f any public record contains material which is not excepted under this
section, the public agency shall separate the excepted and make the
nonexcepted material available for examination.” Because the investigative file
likely contains documents that are excepted under the ORA and documents
that are not, the University’s duty, as a public agency, was to separate
excepted and nonexcepted documents. For each document the University
claims can be properly withheld from production pursuant to the ORA, the
University had the burden to prove that the document fits within an exception
by identifying the specific ORA exception and explaining how it applies. KRS
61.880. The boilerplate paragraph–this but if not this then that–used for every
withheld document was wholly unacceptable. With those principles in mind
and the overall inadequacies of the University’s ORA response identified, we
turn to the various bases for the University’s refusal to produce any part of the
Harwood Investigative File.
II. The Family Educational Rights and Privacy Act (FERPA)
Although not cited in its initial April 11, 2016 response to The Kernel’s
second ORA request, the University eventually relied primarily on FERPA, 20
U.S.C. § 1232g, to defend its refusal to disclose the Harwood Investigative File.
The trial court erroneously accepted this federal statute as a basis for
nondisclosure of the entire contents of the file under KRS 61.878(1)(k), the ORA
exception “for records or information the disclosure of which is prohibited by
federal law or regulation.”
21
FERPA, a funding statute, imposes conditions on the availability of
federal funds to educational institutions and controls the use and disclosure of
students’ education records. “Congress enacted FERPA under its spending
power to condition the receipt of federal funds on certain requirements relating
to the access and disclosure of student educational records.” Gonzaga Univ. v.
Doe, 536 U.S. 273, 278 (2002). Because FERPA is a federal law regarding
access to documents, it is incorporated into the list of exemptions in the ORA,
which includes public records the disclosure of which is prohibited by federal
law. KRS 61.878(1)(k). FERPA provides, in pertinent part, that
[n]o funds shall be made available under any applicable
program to any educational agency or institution which has a
policy or practice of permitting the release of education records
(or personally identifiable information contained therein . . .) of
students without the written consent of their parents to any
individual, agency or organization . . . .
20 U.S.C. § 1232g(b)(1).
FERPA defines an education record:
(4)(A) For the purposes of this section, the term “education records”
means, except as may be provided otherwise in subparagraph (B),
those records, files, documents, and other materials which—
(i) contain information directly related to a student; and
(ii) are maintained by an educational agency or institution or
by a person acting for such agency or institution.
20 U.S.C. § 1232g(a)(4)(A)(i)(ii).
While the definition of “education record” in the statute and its
accompanying regulations is broad, courts have generally defined education
records as documents with information about academic performance, financial
22
aid, or disciplinary matters.8 Additionally, the U.S. Department of Education
website recites the statutory definition of “education record” and then provides:
“These records include but are not limited to grades, transcripts, class lists,
student course schedules, health records (at the K-12 level), student financial
information (at the postsecondary level), and student discipline files.”9 Records
relating to a particular student but also involving other individuals have
received different treatment. 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,10 although at
least one court has determined that education records can directly relate to a
student and teacher simultaneously.11 In Ragusa v. Malverne Union Free
8 See U.S. v. Miami Univ., 294 F.3d 797 (6th Cir. 2002) (affirming a lower court’s
ruling that university disciplinary records are education records under FERPA);
Dahmer v. W. Ky. Univ., 2019 WL 1781770, at *3 (W.D. Ky. Apr. 23, 2019) (holding
that records related to student complaints of sexual discrimination and Title IX
investigations are not “educational records” that FERPA seeks to protect from
disclosure); Bauer v. Kincaid, 759 F. Supp. 575, 591 (W.D. Mo. 1991) (holding that
criminal investigation and incident reports are not educational records because they
are unrelated to the type of records which FERPA expressly protects, i.e. records
relating to academic performance, financial aid, or scholastic probation which are kept
in individual student files).
9 U.S. Dept. of Educ., What is an education record?
https://studentprivacy.ed.gov/faq/what-education-record (last visited Mar. 19, 2021).
10 See Briggs v. Bd. of Trs. Columbus State Cmty. Coll., 2009 WL 2047899, at *1
(S.D. Ohio 2009) (holding that records relating directly to school employees and only
indirectly to students are not education records under FERPA); Wallace v. Cranbrook
Educ. Comm., 2006 WL 2796135, at *4 (E.D. Mich. 2006) (holding that documents
related to alleged sexual misconduct of a teacher toward students were not education
records because they did not directly relate to students); Ellis v. Cleveland Mun. Sch.
Dist., 309 F. Supp. 2d 1019, 1024 (N.D. Ohio 2004) (holding that FERPA protects
educationally-related information, not records directly related to an alleged incident of
harassment by a teacher).
11 See Rhea v. Dist. Bd. of Trs. of Santa Fe Coll., 109 So. 3d 851, 858 (Fla. Dist.
Ct. App. 2013) (holding that if a record directly relates to a student, it is irrelevant
23
School District, 549 F. Supp. 2d 288, 293 (E.D.N.Y. 2008), the court held that
even where a document qualifies as an “education record,” FERPA does not
prohibit an institution from releasing that record if “all personally identifiable
information [is] redacted.” (Quoting U.S. v. Miami Univ., 294 F.3d at 824).12
Redaction of FERPA-protected education records is commonplace.13
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. We are persuaded that “education record” should be narrowly
whether it is also related to a teacher under FERPA). The professor in Rhea was given
a redacted copy of a student’s email complaining about his conduct. The Court
addressed the professor’s request for an unredacted copy, so he could know the
student’s identity.
12 In Ragusa, 549 F. Supp. 2d at 293, a high school math teacher denied tenure
filed an employment discrimination action and sought to compel production of records
pertaining to grades and evaluations regarding academic performance and behavior
given to all students in the mathematics department. The Court determined that
while the records were undoubtedly education records as defined by FERPA, redacted
versions of the documents could be produced because nothing in FERPA prohibits
disclosure of education records with no personally identifiable information. Id.Further, FERPA permits an educational institution to disclose education records to
comply with a judicial order. Id.13 See Osborn v. Bd. of Regents of Univ. of Wis. Sys., 647 N.W.2d 158, 168 (Wis.
2002) (holding that the University must redact records, where necessary, to comply
with an open records request for records of applicants); State ex rel The Miami Student
v. Miami Univ., 680 N.E.2d 956, 959 (Ohio 1997) (holding that in producing
disciplinary records, the University may properly redact student names, social security
numbers, student identification numbers, and date and time of the incident);
Unincorporated Operating Div. of Newspapers, Inc. v. Trs. of Ind. Univ., 787 N.E.2d 893,
908-09 (Ind. Ct. App. 2003) (holding that “Although FERPA contains no redaction
provision, neither does it prohibit such.” The appellate court instructed the trial court
upon remand to review materials and redact or separate any portion of the documents
which might contain personally identifiable information in violation of FERPA.); Doe v.
Rollins Coll., 2019 WL 11703979 at *5 (M.D. Fla.) (ordering that records be produced
in redacted form because FERPA does not prohibit the release of records so long as a
student’s personally identifiable information is redacted).
24
construed, as courts generally have when considering its scope, and that even
those documents that qualify may still be subject to production in redacted
form. As noted, FERPA aims to protect the privacy of student education
records and to prohibit educational institutions from disclosing personally
identifiable information in those records. FERPA regulations offer guidance for
redacting. According to 34 C.F.R. § 99.3, “personally identifiable information”
includes, but is not limited to:
(a) The student’s name;
(b) The name of the student’s parent or other family members;
(c) The address of the student or student’s family;
(d) A personal identifier, such as the student’s social security
number, student number, or biometric record;
(e) Other indirect identifiers, such as the student’s date of birth,
place of birth, and mother’s maiden name;
(f) Other information that, alone or in combination, is linked or
linkable to a specific student that would allow a reasonable person
in the school community, who does not have personal knowledge of
the relevant circumstances, to identify the student with reasonable
certainty; or
(g) Information requested by a person who the educational agency
or institution reasonably believes knows the identity of the student
to whom the education record relates.
In Hardin County Schools v. Foster, 40 S.W.3d 865, 869 (Ky. 2001), a
case involving an ORA request for a statistical compilation of student
disciplinary records, the Court interpreted the federal regulation defining
personally identifiable information to “include information that makes the
identity of the student easily traceable, such as a name, address or personal
25
characteristics.” The regulation and this Court’s reading of it have thus
focused on granular information which can be redacted from education records
before production pursuant to an ORA request.
Turning to the case before us, it is not this Court’s role to review the
investigative file at issue and determine which documents, if any, are education
records protected by FERPA and therefore arguably exempt from disclosure or,
more likely, subject to disclosure after appropriate redactions. However, even a
cursory review of the index the University belatedly provided reveals that a
considerable number of the documents in the investigative file cannot
conceivably relate “directly” to a student, and therefore would not qualify as an
education record under FERPA. Some obvious examples of non-qualifying
documents include a camera user manual, the University’s policies and
procedures regarding sexual harassment and assault, and Harwood’s
curriculum vitae. These documents are manifestly not education records,
raising serious questions about the University’s decision to wholly deny the
open records request for all documents in the investigative file when some
documents very clearly have no protection under Kentucky or federal law. As
for other documents that do specifically mention students, many of those also
are not likely education records under the narrow reading of FERPA adopted by
most courts.
To reiterate, it was incumbent upon the University in the first instance to
specifically claim the FERPA exclusion where legally applicable and to
articulate how a given document qualifies as an “education record.” Of course,
26
even education records are generally subject to production in redacted form.
On remand, the University must fulfill its statutory obligations under the ORA
so that The Kernel has sufficient information to challenge any FERPA claims,
and the trial court can then rule as to any documents that remain in dispute.
We note that the University argues that the entire investigative file
constitutes personally identifiable information and it cannot be redacted
because the University reasonably believes that The Kernel knows the two
students’ identities. The above-quoted FERPA regulation states that personally
identifiable information includes “[i]nformation requested by a person who the
educational agency or institution reasonably believes knows the identity of the
student to whom the education record relates.” 34 C.F.R. § 99.3(g). This focus
on whether anyone at The Kernel knows the Jane Does’ identities is immaterial
at this point, however, because the first consideration is which, if any, of the
requested documents are in fact FERPA-protected education records. If
documents exist that constitute education records, then those records can be
redacted to remove personally identifiable information, including information
that could lead The Kernel to identifying the Jane Does. To the extent the trial
court concludes 34 C.F.R. § 99.3(g) may apply in this case, then some fact
finding is in order to determine what impact The Kernel’s alleged knowledge of
the Jane Does’ identities should have on the University’s ORA production
obligations with regard to documents that qualify as FERPA-protected
education records.
27
III. The KRS 61.878(1)(a) Privacy Exemption
The University argues that regardless of whether the Harwood
Investigative File contains education records under FERPA, the Jane Does’
constitutional privacy rights still prohibit disclosure of any part of the 470-page
file. The University relies on federal caselaw characterizing the intimate details
of a sexual assault as falling within an individual’s constitutionally-protected
right to privacy. See, e.g., Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998)
(involving a sheriff’s release of details of a sexual assault on a victim whose
identity was already known to the public due to newspaper coverage). Further,
the University asserts that while redacting names and basic identifiers is
typically sufficient to protect identities, redaction is constitutionally insufficient
if disclosure of the remaining information would allow someone to deduce an
individual’s identity through a skillful internet search.
The ORA contains a privacy exemption, excluding from disclosure
“[p]ublic records containing information of a personal nature where the public
disclosure thereof would constitute a clearly unwarranted invasion of personal
privacy.” KRS 61.878(1)(a). To determine whether a record was properly
withheld under this exemption, “[w]e must balance the interest in personal
privacy the General Assembly meant to protect, on the one hand, against, on
the other, the public interest in disclosure.” New Era, 415 S.W.3d at 82.
In New Era, id. at 78, the Kentucky New Era, a newspaper, filed an open
records request seeking copies of certain arrest citations and police incident
reports from January 1 through August 31, 2009, out of concern that the
28
Hopkinsville Police Department might be responding inconsistently to similar
criminal complaints depending upon the neighborhood involved. After
proceedings in circuit court, New Era received redacted copies of all requested
law enforcement records. The records contained the names of the individuals
involved but their social security numbers, driver’s license numbers, home
addresses and telephone numbers were removed. Id. at 80. New Era sought
discretionary review for the Court to consider whether the Court of Appeals
misapplied the ORA in upholding the city’s redactions of the addresses, phone
numbers, social security numbers, and driver’s license numbers of the victims,
witnesses and suspects appearing in the requested police records. Id.
In examining the personal privacy interest of the individuals to whom the
records pertained, the Court explained that an individual’s interest in
preventing the dissemination of personal information becomes stronger when
the dissemination could subject them to adverse repercussions, such as
embarrassment, stigma and reprisal. Id. at 83.
Kentucky private citizens retain more than de minimis interest in
the confidentiality of the personally identifiable information
collected from them by the state. This interest increases as the
nature of the information becomes more intimate and sensitive and
as the possible consequences of disclosure become more adverse.
Id. at 85. Likewise, victims of sexual assault at the hands of a public
university professor have more than a de minimis interest in the confidentiality
of the personally identifiable information they provide to enable the university
to investigate the alleged misconduct. While this privacy interest must be
29
recognized and protected, it cannot be the basis for wholesale shielding of
public records.
In New Era, the Court reasoned that “where the disclosure of certain
information about private citizens sheds significant light on an agency's
conduct, we have held that the citizen’s privacy interest must yield.” Id. at 86.
For cases where the public interest is more attenuated, the disclosure of
private information may not be warranted. Id. Ultimately the Court concluded
that the release of the additional requested information such as the individuals’
contact information and social security numbers would “constitute a clearly
unwarranted invasion of personal privacy,” and therefore the City’s redaction of
that information did not contravene the ORA. Id. at 88.
So, although the public interest in assessing the quality and
thoroughness of a publc agency’s performance of its duties is always strong,
Board of Examiners, 826 S.W.2d at 328, courts must also consider whether a
record production will result in an unwarranted invasion of privacy. We cannot
say that disclosure of some or even all of the Harwood Investigative File would
“constitute a clearly unwarranted invasion of personal privacy” because the
privacy concerns presented by disclosure can likely be resolved through careful
redaction. Kentucky citizens have a strong interest in ensuring that public
institutions, including the University, respond appropriately to accusations of
sexual harassment by a public employee. To the extent the personal privacy
exemption is claimed as to a particular document on remand, the trial court
30
must balance that interest against the strong public interest in knowing how
promptly and effectively the University handled this matter.
The Kernel has no objection to and, in fact, requested the redaction of
any information that personally identifies the women Harwood sexually
assaulted. We agree with the University that protection of the two graduate
students’ privacy interests will entail redaction of more than simply names and
addresses. The Jane Does were two females in a very small, male-dominated
program. Revealing information such as their particular area of study, year of
graduate work, names of their advisors, or the years or locations of their sexual
assault could lead to their identification. On remand, the University should
make its specific privacy interest exemption claims as to the specific requested
documents and propose redactions. The trial court can then consider whether
the resulting document production appropriately balances the public and
private interests at stake.
IV. The KRS 61.878(1)(i) and (j) Preliminary Records Exemptions
Finally, we consider the primary reason the University stated in its April
11, 2016 response as grounds for withholding the entire Harwood Investigative
File, i.e., the contents were not subject to disclosure because they were all
documents preliminary in nature. The relevant “preliminary records”
provisions of the ORA exclude the following from disclosure:
(i) Preliminary drafts, notes, correspondence with private
individuals, other than correspondence which is intended to give
notice of final action of a public agency;
31
(j) Preliminary recommendations, and preliminary memoranda in
which opinions are expressed or policies formulated or
recommended[.]
KRS 61.878(1)(i) and (j). The University contends that it took final action on
the Jane Does’ complaints when it accepted Harwood’s resignation and entered
into the separation agreement but all records that preceded that event were
preliminary in nature and therefore excluded from disclosure. This position
reflects a misunderstanding of the relevant ORA exceptions.
In University of Kentucky v. Courier-Journal & Louisville Times Co., 830
S.W.2d 373, 374 (Ky. 1992), the University of Kentucky received a complaint
from the National Collegiate Athletic Association (NCAA) regarding alleged rules
violations by the University. The University President launched an
investigation into the allegations and prepared an official response on behalf of
the University which was sent to the NCAA. Id. at 375. The response
incorporated transcripts of interviews and documents gathered during the
investigation. Id. When the Courier-Journal sought disclosure of the response,
the University raised several exemptions to disclosure in the ORA, including
KRS 61.878(1)(i) and (j).14 Id. at 377. This Court reasoned that “[t]he Response
signed by the University’s president and submitted to the NCAA constituted the
final result of an extensive investigation.” Id. at 378. The Court also held that
“investigative materials that were once preliminary in nature lose their exempt
14 The ORA has been amended since the Courier-Journal opinion was rendered.
At the time of the opinion, these exemptions were contained in KRS 61.878(1)(g) and
(h). The language of the exemptions is identical.
32
status once they are adopted by the agency as part of its action.” Id.Therefore, the entire Response was subject to disclosure. Id.Here, the University, through its Office of Institutional Equity and Equal
Opportunity, investigated the sexual assault allegations against Harwood and
created a “Final Investigative Report” as well as a “Final Determination Letter”
sent to Harwood and the Jane Does. The University concedes that it took final
action on the two students’ complaints when it accepted Harwood’s resignation
and entered into a separation agreement with him, but it disputes that
documents in the investigative file lost their preliminary status when Harwood
resigned.
The University correctly points out that nothing in KRS 61.878(1)(i) and
(j) states that preliminary materials ever lose their preliminary status yet the
Court in Courier-Journal created a narrow exception to the plain language of
the statute.15 However, “when the General Assembly revises and reenacts a
statute . . . it ‘is well aware of the interpretation of the existing statute and has
adopted that interpretation unless the new law contains language to the
contrary.’” Ballinger v. Commonwealth, 459 S.W.3d 349, 354-55 (Ky. 2015)
(citing Butler v. Groce, 880 S.W.2d 547, 549 (Ky. 1994)). The Courier-Journal
opinion was rendered in 1992. The General Assembly revised and reenacted
the ORA in 1994, 2005, 2013 and 2018. Despite these numerous
15 The position taken by the Court regarding preliminary documents had been
adopted by the Court of Appeals years before. See, e.g., City of Louisville v. Courier-
Journal & Louisville Times, 637 S.W.2d 658 (Ky. App. 1982); Ky. State Bd. of Med.
Licensure v. Courier-Journal & Louisville Times, 663 S.W.2d 953 (Ky. App. 1983).
33
opportunities to revise the statute to address this Court’s interpretation of the
preliminary document exceptions in Courier-Journal, through each amendment
and reenactment, the language of KRS 61.878(1)(i) and (j) has remained exactly
the same. Further, the alleged “narrow construction” of the exception adopted
in Courier-Journal is in accordance with KRS 61.871, which requires that “the
exceptions provided for by KRS 61.878 . . . shall be strictly construed. . . .”
Here, even though Harwood resigned prior to a final adjudication by the
University, this fact does not render the investigative file a collection of “forever
preliminary” documents. In Palmer v. Driggers, 60 S.W.3d 591, 594 (Ky. App.
2001), a newspaper filed an ORA request seeking disciplinary records
pertaining to local police officers. One of the officers who was the subject of a
formal complaint, Palmer, resigned during the disciplinary proceedings with
the Owensboro City Commission. Id. When the trial court ordered that a
redacted copy of the complaint against Palmer be released to the newspaper,
Palmer appealed. Id. at 594-95. The Court of Appeals held, correctly in our
view, that “a resignation from a position by an employee before the Commission
has reached a decision concerning possible termination is a ‘final action.’” Id.
at 597.
Like in Palmer, the effect of Harwood’s resignation was to end the
investigation and disciplinary proceedings; his resignation constitutes a final
action. These parts of the Harwood Investigative File that were once
preliminary in nature lost that exempt status when the University agreed to
end the investigation and proceedings by accepting Harwood’s resignation and
34
entering into a separation agreement. Courier-Journal, 830 S.W.2d at 378. The
preliminary document exceptions invoked by the University at one point in
these proceedings are thus not applicable and should not be considered on
remand.
CONCLUSION
The Open Records Act encourages the “free and open examination of
public records” even where examination “may cause inconvenience or
embarrassment to public officials or others.” KRS 61.871. The University may
find The Kernel’s ORA requests burdensome and intrusive or even ill-advised
but the University is not authorized to decide what public records must be
disclosed and what records can lawfully be withheld. Those decisions are
ultimately for the courts within the parameters of the ORA, and to facilitate
those decisions the University must first fulfill its obligations to the public
under the statute and this Court’s ORA precedent. We trust that the
University will do so on remand and the trial court can proceed to a proper
resolution of this unnecessarily protracted open records action. Accordingly,
we affirm the Court of Appeals and remand this matter to Fayette Circuit Court
for further proceedings consistent with this Opinion.
All sitting. All concur.
35
COUNSEL FOR APPELLANT:
Joshua Michael Salsburey
Bryan Howard Beauman
Donald Callaway Morgan
Sturgill, Turner, Barker & Moloney, PLLC
William E. Thro
General Counsel
University of Kentucky
COUNSEL FOR APPELLEE:
Thomas Walcutt Miller
Elizabeth Catesby Woodford
Miller, Griffin & Marks, PSC
COUNSEL FOR AMICI CURIAE,
JANE DOE 1 AND JANE DOE 2:
Melissa Foster Bird
Megan Basham Davis
Nelson Mullins Riley & Scarborough LLP
COUNSEL FOR AMICI CURIAE,
EASTERN KENTUCKY UNIVERSITY,
KENTUCKY COMMUNITY & TECHNICAL
COLLEGE SYSTEM, KENTUCKY SCHOOL
BOARDS ASSOCIATION, KENTUCKY STATE
UNIVERSITY, MOREHEAD STATE
UNIVERSITY, MURRAY STATE UNIVERSITY,
NORTHERN KENTUCKY UNIVERSITY,
UNIVERSITY OF LOUISVILLE, AND
WESTERN KENTUCKY UNIVERSITY:
Ena Viteskic Demir
Thomas Neal Kerrick
Kerrick Bachert, PSC
36
COUNSEL FOR AMICI CURIAE,
THE KENTUCKY PRESS
ASSOCIATION, NEWS LEADERS ASSOCIATION,
REPORTERS COMMITTEE FOR FREEDOM
OF THE PRESS, SOCIETY OF
PROFESSIONAL JOURNALISTS, AND STUDENT
PRESS LAW CENTER:
Michael Patrick Abate
Jon L. Fleischaker
Kaplan Johnson Abate & Bird, LLP
37