Court of Appeals debunks University of Kentucky's "novel" challenge to open records law

By Amye Bensenhaver

for the Scripps Howard First Amendment Center

An “unheralded” opinion of the Kentucky Court of Appeals involving the Lexington Herald-Leaderand the University of Kentucky addresses several of the most confounding exceptions to the open records law and warrants far greater attention than it received. 

Issued on September 14, University of Kentucky v. Lexington H-L Services, Inc. D/B/A Lexington Herald-Leader arose from the Herald-Leader’s challenge to the university’s failure to comply with the open meetings law at a May 2016 meeting of the Board of Trustees to discuss the termination of its affiliation with the Appalachian Heart Center in Hazard and the university’s refusal to release, among other records, a university-directed audit of clinic physicians’ medical documentation and the billing for their services. 

The Herald-Leader’s legal challenges under the Open Meetings and Open Records laws were resolved in favor of the newspaper by the Office of the Attorney General and, with one exception, affirmed by the Fayette Circuit Court. The Court of Appeals therefore considered only the issue of access to the audit records which, it found, were the basis for the university’s decision to refund all payments received for the period in question.

The university argued that the audit records were exempt from disclosure under the over-used preliminary documents exception to the open records law, asserting that they were not adopted or incorporated into its final action and that they also qualified for protection under the attorney-client privilege or the work product doctrine because they were ultimately provided to the university’s chief medical compliance office and its general counsel. 

The court rejected the university’s argument that caselaw determining that preliminary documents lose that status once they are adopted into final agency action is not consistent with the language of the exceptions. In the same vein, it assigned little weight to the university’s policy arguments relating to the impediments to investigations posed by disclosure of preliminary records like the audit records.

It focused instead on the university’s argument that the audit documents retained their preliminary status because they were not incorporated into a final agency action, namely, its repayment of charges, but were “part of its regular course of business” to ensure that the clinic complies with federal law. Characterizing the university’s argument as “novel,” the court concluded that “the university took its final action based upon the information revealed during the audits” and that the formerly internal, preliminary records forfeited that status when adopted into final action. 

The court relied on past opinions but most importantly stated, for the first time, that “the Act does not require that an agency reference or incorporate specific documents in order for those records to be adopted into the final agency action,” putting an end to the frequently made agency argument that preliminary records must be expressly referenced or incorporated in order to lose protection under the preliminary documents exceptions.

Similarly, the court adopted a narrow interpretation of the attorney-client privilege and work product doctrine, both invoked by the university in its effort to resist disclosure. Specifically, the court held that the audit was neither prepared nor conducted under the direction of either its inside or outside counsel and that the university “did not contend” it was “intended to be disclosed only to counsel for the purposes of preparing legal advice.” For these reasons, the court rejected the university’s reliance on the attorney-client privilege. 

Finally, the court rejected the university’s reliance on the work product doctrine, “a qualified privilege from discovery for documents ‘prepared in anticipation of litigation or for trial’ by that party’s representative,’” including an attorney, declaring that the audit documents "were prepared in the course of the university’s normal business oversight of the clinic’s operation, and only remotely in anticipation of potential litigation.” Additionally, the court found that the audit documents were primarily factual and did not contain an attorney’s impressions, conclusions or legal theories.

Again, the court gave a narrow reading to the over-used privileges in what was a rare opportunity to examine them in the context of an open records appeal. 

The decision was written by Judge Irv Maze. The panel also included Judges Sara Combs and Donna Dixon. On October 12, the university petitioned the Kentucky Supreme Court for discretionary review of the opinion. The case therefore may not be final. 

Amye Bensenhaver, a graduate of the University of Kentucky Law School, is a retired assistant attorney general who specialized in Open Records and Open Meetings appeals.