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University refuses public release of sexual assault records

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Editor's note: We don’t normally write about ourselves on the news pages, but because of recent developments in the paper’s efforts to get records about sexual assault cases from the University, we’re making an exception with today’s story. We believe as part of the newspaper’s mission that it serves readers to provide in-depth information about serious issues and happenings on our campus. No issue is more important than the safety of students.

The University administration has declined to release records requested this semester by the University Daily Kansan that would give context to sexual assault cases filed at the University.

Since September when students protested the University's handling of sexual assault, the Kansan has filed multiple Kansas Open Records Act (KORA) requests with the University to release data on sexual assaults cases filed at the University through the Office of Institutional Opportunity and Access (IOA).

In February, the University responded to one of the Kansan’s initial records requests from October with a list on the Student Affairs website of the 32 sanctions it has given students who have violated the University’s Sexual Harassment policy from IOA’s creation in 2012 to December 2014. Although the University originally said it would charge the Kansan around $600 to produce this information, it did not because it felt it was a service to the KU community, according to an email from records custodian Andy Foat.

While the list includes information about the policy and what it includes, it doesn’t include demographic information about the violators and case, including the violator’s sex, whether the incident happened on or off campus, or the sub-violation within the sexual harassment policy. (It lists eight types of harassment that falls under the policy, from unwanted attempts to start a relationship to sexual violence.)

After Student Affairs released that list, Kansan editors submitted another KORA request on Feb. 11. This request asked for specific details for not only the 32 cases that did find a respondent in violation of University policy, but the hundreds of cases that are reported to IOA that don’t result in sanctions. The Kansan asked for the supporting findings of all of these cases, the specific policy violation within the sexual harassment policy for each case and demographic information about the 32 violators.

IOA received 168 sexual assault complaints in 2014, which is more than double the amount it received in 2012, Jane McQueeny, executive director of IOA, said at a sexual assault task force meeting earlier this semester.

James Pottorff of the University’s general counsel denied the Kansan’s request in a reply sent on Feb. 16.

“While your publication may believe these documents are appropriate for publication, the University does not share that belief. Release of these documents would constitute a clearly unwarranted invasion of personal privacy and would discourage future victims and witnesses from reporting sexual assault and cooperating with investigations,” Pottorff said.

The Kansan does not intend to use this information in any way that would re-victimize these students, said Kansan Editor-in-Chief Brian Hillix. The editors at the Kansan hope to create a database that paints a more accurate picture of sexual assault on this campus and gives the community more context about what happens to these reported cases and to investigate whether these cases that result in sanctions are treated fairly by the University. Hillix said the Kansan believes that providing more information to the public is the best way to prevent future assaults.

However, the Kansan does not have to legally justify why it requests information. If the information is in fact a public record subject to KORA, the University is legally obligated to produce it.

“The fact is, the way that a person is going to use public records has no bearing on their entitlement to receive the records,” Frank LoMonte, director of the Student Press Law Center in Washington D.C. “You might be requesting them to publish, you might be requesting them for your own personal curiosity, you might be requesting them to share informally with your friends, it just doesn’t matter.”

LoMonte said that public entities subject to open records laws don’t get to decide which records to release or when to release them based on what they think the requestor is planning to use them for.

He said that if this were allowed, those entities could potentially use it as a way to cover up information they don’t want to release.

“You would never want government agencies to get in the business of deciding what uses are or are not suitable because many of them would abuse that authority to keep secrets,” LoMonte said.

Schools such as the University of Virginia and Ohio State have already produced records like this to the public when requested. Because of the fulfillment of similar requests at other universities, the Kansan editors do not believe they are asking for something outlandish or extreme.

When The Kansan asked to meet with the University’s general counsel, the general counsel directed editors to the Office of Public Affairs. When the Kansan contacted Tim Caboni, vice chancellor of public affairs, he also declined to meet with The Kansan.

“The response you received from the university's general counsel is very clear and, in its totality, represents the university’s statement on the KORA request,” Caboni said a Feb. 24 email. “The university will not allow details of the most harrowing moments of these students' lives to be printed publicly. Additionally, we will not release information likely to allow students to be identified. We take our obligation in this regard very seriously.”

After meeting with Kansan editors on Feb. 18 to discuss potentially sharing some information about reported sexual assaults, McQueeny told the Kansan to contact Public Affairs in a March 2 follow-up email. She did not respond to additional emails and messages.

The Kansan also contacted the office of Chancellor Bernadette Gray-Little for comment.

“The letter from the Office of the General Counsel represents the university’s statement on the records request,” Jack Martin, director of strategic communications for the University, said.

Hillix and Kansan editors believe there are some inconsistencies between what The Kansan requested and the reasoning the University provided for denying the request.

The reasons the University include for not providing this information include a KORA exemption for information regarding “medical, psychiatric, psychological or alcoholism or drug dependency treatment records which pertain to identifiable patients.”

The Kansan did not request medical or treatment records.

The response from general counsel said the University also denies to provide “information that would reveal the location of a shelter or a safehouse or similar place where persons are provided protection from abuse or the name, address, location or other contact information of alleged victims of stalking, domestic violence or sexual assault.”

The Kansan did not request information on safe houses that the University may or may not own or operate or information about accusers.

For a research project, Emma Halling, former acting student body president and a senior from Elkhart, Ind., filed a public records request for names of offenders, date of the offense, specific violation and sanction from 2010 to the present on Feb. 27. Like The Kansan, she also received a denial Tuesday afternoon from the University’s general counsel.

“It’s important that non-identifiable information be made available on these cases so we can understand any trends on sexual assault and therefore adequately address it,” Halling said.

— Edited by Emma LeGault

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