Friday, August 19, 2016

Beshear says UK not in violation because records requested did not exist

The University of Kentucky did not violate the Open Records Act when requested to turn over specific items that did not exist.

Attorney General Andy Beshear issued an opinion on June 30, 2016, holding the University of Kentucky did not violate the Open Records Act in In re: Lachin Hatemi/University of Kentucky, 16-ORD-134. 

Hatemi requested documents and agreements between UK and the Kentucky Medical Services Foundation about a "joint defense arrangement." UK responded that no such records exist, which prompted Hatemi to appeal to the attorney general. 

The appeal stated that UK contradicted itself. In an earlier open records appeal, the university referred to a joint defense arrangement. 

UK replied again, stating the university and the foundation looked through their records and neither found anything that applied to the request. Because the university made a good faith effort and found nothing, it fulfilled its statutory burden per the Open Records Request. 

Beshear found that the case was distinguishable from an earlier opinion, 15-ORD-210, because Hatemi identified no statutes, regulations, or case law that required UK to create a written agreement about a joint defense arrangement. 

The opinion also referenced Broessel v. Triad Guaranty Insurance Corporation, 238 F.R.D. 215 (W.D. Ky. 2006) which Beshear says illustrates that joint defense arrangements are not commonly reduced to writing, and there is no legal requirement to have it in writing. 

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