An attorney representing Western Kentucky University’s campus newspaper in a lawsuit over access to employee sexual misconduct records argues that a ruling in Franklin Circuit Court over similar records supports the newspaper’s case.

Michael Abate, the attorney representing the College Heights Herald, argued in a recent court filing that allowing government agencies to withhold the names of employees accused of sexual misconduct is dangerous – even if the allegations were unproven.

“An isolated ‘he-said/she-said’ incident is, when viewed in context, part of a larger, alarming story about dangerous individuals allowed to occupy positions of public trust who are simply shuttled from place to place when troubling allegations arise,” Abate wrote in the filing.

Abate insists that a recent judge’s order in Franklin Circuit Court compelling the Kentucky Labor Cabinet to release the name of an employee who’d been investigated and cleared of sexual harassment should also apply to WKU.

“We think that’s exactly what should have happened here,” Abate said in an interview.

WKU sued the Herald in February 2017 over an open records request in which a reporter asked for investigative records into all sexual misconduct allegations against WKU employees over a five-year period. Oral arguments for the case took place in April of this year.

Abate told the Daily News that the case is still under advisement by Warren Circuit Court and that all parties are waiting for a decision. He said he’s not sure when a ruling will be reached by Judge Steve Wilson.

On Oct. 22, the Kentucky Labor Cabinet complied with the court’s order and released the identity of the employee, Hector Fonseca, to the Kentucky Center for Investigative Reporting, which originally requested the records.

Kentucky’s Finance and Administration Cabinet is appealing a similar ruling and that case is ongoing, according to 89.3 WFPL News, an affiliate of Kentucky Public Radio, which was a defendant in both cases.

Fonseca was accused by a co-worker of repeatedly exposing himself and forcing the employee to touch his genitals. After the claims were investigated by the cabinet and found to be unsubstantiated, Fonseca was moved to another government agency.

However, Abate noted in his legal filing that while Fonseca was being investigated he was also under a restraining order from a former partner who accused him of domestic violence.

Abate also notes that Fonseca has been charged with domestic violence, drunk driving and felony child abuse. Abate said the newspaper has never sought to identify students and would accept redacted records that protect their privacy. He sees Fonseca’s case as a perfect example why WKU shouldn’t be able to deny the Herald the records – even if allegations are ultimately unverified.

“While only a single example, this case perfectly illustrates the dangers of allowing agencies to shield serious allegations of misconduct in the workplace because of a lack of alleged ‘substantiation,’ ” he wrote.

For Abate, the lawsuit is about issues of public safety and government accountability. He said the public has a right to know about allegations of sexual misconduct by public employees while on the job.

Asked in an email about how the rulings might affect WKU’s case, the university’s general counsel Deborah Wilkins said Abate’s court filing “is neither new nor relevant.”

Wilkins said federal law protects the privacy of students’ education records and is an important factor in why WKU and the University of Kentucky have denied similar requests. She cited an opinion from the office of Kentucky’s attorney general.

That opinion found the Scott County Public School District correctly denied a request for records that directly relate to students’ rights under the Family Educational Right and Privacy Act.

“Disclosure of employee records has been the issue of many previous attorney general opinions,” she said. “The difference in this case is the records in dispute in our case and UK’s case involve students.”