Nine pages or 15,000? After four years of battling in court, UK gives records to Herald-Leader

By Linda Blackford, Lexington Herald-Leader

It’s taken four years, but the Lexington Herald-Leader has finally prevailed against the University of Kentucky in an open records case that should have ended shortly after it was filed.

It’s taken four years and four courts to decide that UK did not have the right to withhold documents that would explain why it paid $4 million back to the federal government because of a cardiology clinic it acquired in Hazard. Although the Herald-Leader prevailed at all levels of the case, from the Attorney General’s office to the Supreme Court, UK kept fighting to keep this public business hidden away.

When the Kentucky Court of Appeals ordered UK to turn over related documents, UK attorneys said only nine pages were relevant. When the Herald-Leader challenged that, UK turned over the real number — at least 15,000 pages.

In all, this case has cost taxpayers roughly $118,000 in legal fees to an outside law firm in the past four years. That’s small potatoes at a school with a $2 billion budget. But it’s still public money used in a misguided and stubborn quest to show that UK knows best and the public does not need to be aware of what the state’s flagship university is doing.

SECRETS, SECRETS

It all started with a secret meeting.

On May 2, 2016, the UK Board of Trustees attended their regular dinner gathering the night before their monthly meeting. But they neglected to announce the main course: A Power Point presentation by a national healthcare lawyer who explained why UK had suddenly paid $4.1 million back to the federal Medicaid and Medicare programs that had been charged by a UK cardiology clinic in Hazard.

The Lexington Herald-Leader challenged the meeting as being illegal under the state Open Meetings law, and asked for a host of documents, including audits of the clinic. UK refused, citing two exemptions to the Open Records law: That the documents were preliminary (even though the payments had been made and the clinic had been sold) and that they were protected under attorney-client privilege. So the case went to the state Attorney General.

The Attorney General's Office said it would review the documents “in camera,” or privately, to see if they should be released. UK refused, and appealed to Fayette Circuit Court.

Circuit Judge Pamela Goodwine said UK should turn over the documents. UK handed over records detailing its attorney’s $1 million in billing and the Power Point presentation that was given to the board. But it refused to release additional records, including audits, and appealed the case to the Kentucky Court of Appeals.

The Kentucky Court of Appeals flatly rejected UK’s argument that the records were preliminary and agreed with Tom Miller, the Herald-Leader’s attorney.

“The University’s position is novel, but we do not find any authority supporting it,” the decision says. “Indeed, there is no dispute that the University took its final action based upon the information revealed during the audits. Records which are of an internal, preliminary and investigatory nature lose their exempt status once they are adopted by the agency as part of its action.”

UK then asked the Kentucky Supreme Court to review the decision. The Supreme Court declined to hear the case.

It returned to Fayette Circuit Court, where both Judge John Reynolds and his successor, Judge Julie Goodman, ordered UK to give the documents to the Herald-Leader, which it did last week. In coming weeks, the Herald-Leader will read through all of them and report to the public exactly what UK was trying to hide.

There are larger principles at stake than the fate of one clinic. In recent cases, UK, led by General Counsel William Thro, has argued that it is above the law, above the private scrutiny of the Attorney General, and above the public interest.

It is difficult to understand this recalcitrance, which not only keeps what could be short-lived controversies in the public eye for years, but makes President Eli Capilouto’s claims of openness and transparency look hollow. We’ve seen the same stubbornness in a far more serious case, that of the student newspaper, the Kentucky Kernel, and its quest to uncover the truth about the abuse of students in a sexual harassment case involving a professor. The Kernel is also represented by Miller.

UK’s blanket denial of documents was also overturned by the Court of Appeals and is now before the state Supreme Court.

“Here, there is more at stake than simple curiosity. The public has an interest in the investigative methods used by its public agencies and to know that a publicly funded university has complied with all federal and state laws,” Judge Kelly Thompson of Bowling Green wrote in the Court of Appeals decision. “In this instance, the university has not yet made any attempt to comply with the Open Records Act in any meaningful way. It has taken the indefensible position that the records are exempt because it says they are and it must be believed. That position is directly contrary to the goal of transparency under the Open Records Act.”

A DISTURBING TREND

As UK points out, it does respond quickly and positively to 90 percent of the numerous information requests it receives every year.

“There have been a handful of cases where we have sought to protect records,” said spokesman Jay Blanton. “Those handful of cases revolve around three issues and exceptions that the law – and our moral obligations – provide for: protecting the privacy of students, victims and patients; protecting attorney-client communications and work product and protecting the preliminary recommendations of administrators to ensure the kind of candid conversations and dialogue necessary to get at the facts.”

Still, in this kind of case, UK’s thwarting of the Open Records Act is costing it both good will and good money. It is a tax-payer supported institution, devoted to learning, open minds and service to the Commonwealth. Its residents have a right to know what it is doing. This fight has done nothing for that greater good.

The case also shows the importance of Kentucky’s robust open-records laws, and highlights an important issue now at stake in the shifting and challenging economic climate affecting local media. For decades, the Herald-Leader and other local newspapers in Kentucky and nationally have championed transparency, open records and open meetings as watchdogs of public agencies and government at all levels.

That role is more important today than ever as public institutions like UK increasingly push back against laws that require the public’s business to be done out in the open.

This case took four years, wound its way to the Kentucky Supreme Court and back, and involved thousands of dollars in legal fees paid by the Herald-Leader, with support from the Kentucky Press Association.

Amye Bensenhaver, a former assistant attorney general who wrote numerous open-records and open-meeting decisions, said the Herald-Leader decision is an important one.

“The court’s analysis in this case will be regularly cited to refute agency attempts to broadly construe the preliminary documents exception — long considered the most abused exceptions — and the attorney-client privilege/work product doctrine — rising stars in the galaxy of overused exceptions,” she noted. “The final victory is the Herald-Leader’s and ours.”

National report gives data on records decisions, notes staff attorneys give state agencies an edge; expert says noncompliance is likely to increase

Based in part on a post by the Kentucky Open Government Coalition

The National Freedom of Information Coalition recently issued a white paper, ”Blueprint to Transparency: Analyzing Non-compliance and Enforcement of Open Records Laws in Select U.S. States.”

Kentucky is one of the states that is featured. The white paper gives recent data showing widespread violation of the Kentucky Open Records Act, and notes the disadvantage records requesters face when fighting with taxpayer-paid lawyers — an issue currently before the Kentucky General Assembly.

NFOIC reviewed open-records decisions by the Kentucky attorney general in 2016 and 2017 revealed a high prevalence of noncompliance: Almost half of open-records decisions in 2016 and 2017 exhibited a violation of the state Open Records Act (49 and 48 percent, respectively).

Former assistant attorney general Amye Bensenhaver, co-founder of the Kentucky Coalition for Open Government and primary author of open-government decisions for the attorney general for 25 years, told NFOIC that she expects noncompliance will grow because she sees "now-common impediments to access that were uncommon in the past—agency failure to conduct an adequate search for responsive records; agency rejection of requests as overbroad; unjustified agency delays in producing public records. The list of evasive tactics is growing."

Of the 511 decisions NFOIC reviewed, 74 (17%) found that an agency improperly withheld records; 60 (12%) found an improperly stated exemption. Louisville lawyer Jon Fleischaker, chief author of the records law, said public agencies often cite improper exemptions and ignore settled law.

“You have public officials that are reaching,” Fleischaker said. “And if they have a lawyer and they go to the books they’ll figure out that there are a lot of cases that say ‘No, they can’t do that. This has already been decided.’”

Also among the most common types of violations are those based on time, such as failing to respond to a request or allow inspection in a timely manner; 84 of the 511 records decisions (about 16%) exhibited a such violations, which are treated as procedural as opposed to substantive violations.

“I don’t consider, and I know Fleischaker doesn’t consider, a procedural violation a petty violation. It’s still a violation,” Bensenhaver said.

Playing with public money

Open-records decisions have the force of law, but the losing party can take the case to circuit court, and state agencies often do. Any civil penalties for violations fall on the agency, not the individual officials.

Because taxpayers cover the cost, a state agency has the resources — in the form of attorneys on the state payroll — to devote to litigation and the appellate process, allowing the state to appeal as many times as allowable to avoid or delay disclosing the records.

Unlike requesters, the public agency usually does not incur hourly attorneys fees.

“They’re using their time [on the public records dispute] instead of someplace else ... but it’s easy to hide that expense,” Fleischaker said. “It goes toward a different line item: Personnel. And nobody goes back to look at that stuff.”

Jason Riley of Louisville's WDRB-TV said some state agencies feel they are exempt from the law since penalties aren’t rigorously enforced against them: “Some agencies know how to work the system in their favor so as to not have to provide records they don’t want to provide unless a citizen or media outlet is willing to pay a lot of money and wait.”

Bensenhaver says no other state agency is as notorious for violating the records act than the Kentucky State Police. In the decisions where KSP was a party in 2016 and 2017, the attorney general found the agency in violation of the records act 19 times, or 59% of the time.

Riley found KSP was the most frequent violator of the act over the last five years​, after conducting a review​ of attorney-general decisions.

Bensenhaver, Riley and Fleischaker said the KSP frequently appeals decisions, which lengthens litigation and makes proceedings more expensive for records requesters.

“We won about $11,000 in fines and attorney fees earlier this year” from the KSP, Riley said, “but they have appealed that ruling.”

Large local governments also have attorneys on staff, but many if not most use contract attorneys and thus incur hourly fees.

House Bill 232, sponsored by Rep. Maria Sorolis, D-Louisville, would require agencies to pay attorneys’ fees if a court finds a record was willfully withheld; her HB 309 would award fees when there is no “justiciable reason” for an agency's denial of a complaint that it violated the Open Meetings Act. Neither bill has been posted for committee consideration; Sorolis is a Democrat, newly elected to a House with a Republican supermajority.

The national report says, “According to a ​2010 examination of state transparency laws​, the vast majority of state jurisdictions explicitly either allow for, or mandate, attorney fee shifting in open-government dispute cases because these disputes confer a societal good, not just personal benefit . . . to ensure that plaintiffs are able to find lawyers to represent them; to attract competent counsel to seek redress of statutory rights; and to even the fight when citizens challenge a public entity.”

Kentucky courts still grappling with records of probes into sexual harassment at universities

From the Kentucky Open Government Coalition

An article in the Wisconsin State Journal reminds us that the issue of access to university records relating to investigations into sexual harassment by faculty and staff has yet to be finally resolved by Kentucky’s courts.

The open records lawsuit pitting Western Kentucky University against the University of Kentucky student newspaper, The Kernel, and it’s own student newspaper, The College Heights Herald, remains in Warren Circuit Court. This follows a 2017 Kentucky attorney general’s ruling that WKU improperly relied on the Family Educational Rights and Privacy Act as the basis for withholding sexual harassment investigative records.

In a separate lawsuit pitting UK against the Kernel, the Kentucky Court of Appeals in 2019 affirmed a 2016 attorney general’s decision, reversed a local judge's opinion, and ultimately rejected UK’s claim that FERPA protects university investigative records into allegations of sexual harassment.

However, the court returned that lawsuit against the Kernel to Fayette Circuit Court for further review on other privacy issues. There it remains.

The court slammed UK for failing to “fulfill its statutory mandates under the Act” and making no “attempt to comply with the Open Records Act in any meaningful way.”

Rejecting the suggestion that the Kernel was motivated by “simple curiosity,” the court recognized that “the public has an interest in the investigatory method used by its public agencies and to know that a publicly funded university has complied with all state and federal laws.”

It criticized the university for taking “the indefensible position that the records are exempt because it says they are and it must be believed.”

The University of Wisconsin case presents similar facts and similar illegal university secrecy. It involves a tenured ecology professor who retired in the midst of an investigation that confirmed allegations of sexual harassment.

Neither the professor nor his victims were satisfied by the university’s investigation and subsequent “cover up.”

Echoing the Kentucky Court of Appeals in the UK v. Kernel case, Frank LaMonte, director of the Brechner Center for Freedom of Information at the University of Florida and former director of the Student Press Law Center, observes: “There’s a compelling public interest in the investigative process. The public needs to be able to see that cases are being taken seriously, processed promptly and dealt with appropriately. If you cannot see the records, the university is left on a ‘trust me’ honor system. We know from experience that the ‘trust me’ honor system doesn’t always work.”

Bill Lueders, president of the Wisconsin Freedom of Information Council, notes that release of redacted records helps the public assess how fair the investigation was to both parties: “This is a case in which a public employee’s misconduct was affirmed by an investigation. The public has a right to know what that misconduct was beyond ‘sexual harassment,’ which could mean anything and include a wide range of behavior.”

C-J says Beshear must set health-and-family cabinet right on child-abuse records, following judge's order

The Courier-Journal published a remarkable editorial Sunday excoriating the Cabinet for Health and Family Services for the high level of secrecy in which it has enveloped cases of children who were killed or nearly killed while its caseworkers were supposed to see that they were protected from harm. Last week a judge ordered the cabinet to pay nearly $1 million in civil penalties and attorneys' fees to the newspapers that have been seeking the records. Rather than excerpt the editorial, we publish it in full, along with photographs of the officials it holds responsible. For larger versions, click on the images.

Appeals court upholds award of attorney fees to reporter, citing city's repeated 'false denials'

The Kentucky Court of Appeals ruled today that the City of Owensboro must pay the legal fees of a newspaper reporter to whom it refused to give copies of complaint forms about the police department's public-information officer.

James Mayse of the Messenger-Inquirer sought records involving Marian Cosgrove, who resigned her job in November 2011 after coming under investigation by the department. He asked for any documents related to any complaint about her, and the city repeatedly said it had no records that would be responsive to his requests.

Mayse appealed to Attorney General Jack Conway, whose office asked for and got the investigative files from the city. Conway ruled that the city must release the initial complaint forms in the file because they are not exempt from the state Open Records Act. The city appealed to Daviess Circuit Court, where Judge Jay Wethington ruled for Mayse. He said the city's denials were "willfully defiant" of the intent of the law and done in "bad faith," so the city should pay Mayse's legal fees.

The city appealed, but gave Mayse the two Professional Standards Complaint Forms, so the appeals court dismissed that part of city's appeal. In granting Mayse attorney fees, the three-judge panel wrote, "The City's response, on three separate occasions, that no record responsive to Mayse's requests for complaints is problematic given the egis of the Open Records Act. In fact, there were two documents labeled "Professional Standards Complaint Forms" in Cosgrove's file from the inception of Mayse's requests. When the attorney general asked repeatedly about the existence of 'any other document,' the city also denied the existence of such documents to the OAG. The circuit court found the city's explanation that the information was incorrectly put on a complaint form and labeled 'internal' was not persuasive and defied the statutory intent of the Open Records Act. In essence, the City repeatedly made false denials of the existence of any complaints regarding Cosgrove." The decision is here.

Ky. high court says police can't just dismiss records requests using prospective-action exemption

The Supreme Court of Kentucky ruled today that law enforcement records are subject to open-records requests even if there is a "prospective law enforcement action," and that to withhold records for that reason, a law-enforcement agency must prove that a premature release of the them would hurt its prospective action.

The state's highest court ruled in a case brought by The Kentucky Enquirer, which wants the investigative file about a murder to which the victim's widow pleaded guilty in 2009 but is now seeking a new trial, alleging she had ineffective counsel. The Gannett Co. newspaper, an edition of The Cincinnati Enquirer, has been seeking the file since the case concluded.

The ruling "is a big step forward for us," Kentucky Press Association counsel Jon Fleischaker told the newspaper organization, which supported the Enquirer's efforts. "The court handed down some guidelines for proof in an open-records case which will be very helpful to us, especially in cases like the pending action against the Cabinet for Health and Family Services. Finally, there is very useful language regarding the imposition of attorney’s fees and the circumstances under which the award of attorney’s fees is appropriate.  Those guidelines will be useful for all of us." For Fleischaker's note and a copy of the decision, click here.

The court "found that although the municipality’s response to The Enquirer request for records was inadequate, it has not been shown to have willfully violated the law, and so does not provide a basis for sanctions," Jim Hannah writes for the newspaper. "The Enquirer had asked that the municipality pay its legal bills in the case. Fort Thomas was ordered to make a good faith effort to identify those records responsive to The Enquirer’s request and either provide them to the newspaper or explain with why, under the law, they are exempt. A Campbell Circuit Court judge would then be asked to review what the city claimed was exempt to ensure the law was being followed." (Read more)

AG says UK should release records on pediatric heart surgery program, which is under review

Attorney General Jack Conway has ruled that the University of Kentucky hospital violated the state Open Records Act by refusing to give a reporter for the university-owned radio station records relating to the work of the chief of cardiothoracic surgery, who has stopped doing surgery on children. UK refused to let Conway's staff examine the records to evaluate UK's claimed need for confidentiality.

After inquiries by Brenna Angel of WUKY, "UK announced that the hospital had stopped performing pediatric cardiothoracic surgeries pending an internal review," John Cheves writes for the Lexington Herald-Leader. Angel reports that she sought records on Dr. Mark Plunkett, left, who was also director of the pediatric and congenital heart program: "the date of Plunkett’s last surgery, the mortality rate of pediatric heart surgery cases, and documentation related to the program’s review." She sought no patient-specific data.

UK denied her request, citing the federal Health Insurance Portability and Accountability Act and arguing that release of the information could lead to the identification of one or more patients because Plunkett was doing so few surgeries on children. It also cited HIPAA in refusing to let Conway's staff review the records. Conway rejected that argument, noting that HIPAA does not supersede state laws and even make allowances for them.

Because it deals with the Open Records Act, Conway's decision has the force of law. UK can appeal the decision to circuit court within 30 days of March 27, the date of the decision. "UK spokesman Jay Blanton says officials are considering whether to file an appeal," Angel reports. The decision was publicly released Monday, the same day UK held a press conference about "the progress UK Healthcare has made in cardiology," she notes. "Yet the pediatric cardiothoracic surgery program remains under review, and patients from Central and Eastern Kentucky are being referred to hospitals out of state. Dr. Mark Plunkett remains on staff."

When Angel asked Dr. Michael Karpf, UK's executive vice president for health affairs, to comment, he replied, “We’ll have something to say about that in a little while.” Cheves notes, "UK recruited Plunkett, a noted surgeon at the University of California at Los Angeles, in 2007 to strengthen its pediatric heart program. He makes $700,000 a year, one of the highest salaries at UK." (Read more)

Read more here: http://www.kentucky.com/2013/04/01/2582150/uk-violated-open-records-law-in.html#storylink=cpy

Read more herehttp://www.kentucky.com/2013/04/01/2582150/uk-violated-open-records-law-in.html#storylink=cpy

Lawyer Kim Greene wins UK's James Madison Award for service to the First Amendment

Kim Greene, who was one of Kentucky's leading First Amendment lawyers, received the James Madison Award tonight from the Scripps Howard First Amendment Center in the School of Journalism and Telecommunications at the University of Kentucky. The center presents the award for outstanding service to the First Amendment by someone with ties to Kentucky.

Greene, of Louisville, was instrumental in starting the Freedom of Information Hotline for the Kentucky Press Association in 1986. It remains the only such free hotline for newspapers in the U.S. In 1996 she helped start KPA's Legal Defense Fund Hotline. She was named KPA's most valuable member in 2001.

Greene represented many Kentucky newsrooms. Max Heath, who was executive editor of Landmark Community Newspapers, said in his nomination that she was "a velvet hammer" as an attorney, always smooth and professional but firm in her advocacy. She won the First Prize from the Louisville Chapter of the Society of Professional Journalists in 2005 for her First Amendment work.

Greene, a native of Ashland, told the crowd at UK's Young Library Auditorium that she fell in love with the First Amendment when she was in law school, then with journalists who used it to serve the public. "The First Amendment is just that special ingredient that makes our country so different from all others," she said.

Greene told the student journalists in the audience, "there's hardly any more important work in our country that you could be doing." She is married to First Amendment lawyer Jon Fleischaker, won won the Madison Award several years ago.

Grayson, left, speaks with UK accounting
senior Aleksey Graboviy after his speech.
(Kentucky Kernel photo by Tessa Lighty)

The award was presented at the center's annual Celebration of the First Amendment. The annual "State of the First Amendment" address was given by Trey Grayson, director of the Institute on Politics in the John F. Kennedy School of Government at Harvard University and Kentucky's secretary of state from 2004 to 2011.

Grayson spoke on occasional conflicts of the First Amendment with the right to vote, as seen in news-media coverage of voting and the ubiquity of cameras, which pose threats to the privacy of voting, and Kentucky's law on electioneering near voting places, passed after a federal appeals court struck down a ban on electioneering within 500 feet of the polls, with an exception for private property. Current law sets a 300-foot limit with no private-property exception, and "That strikes me as still being a little broad," Grayson said.

Burnside violated Open Records Act, AG says

The City of Burnside, in Pulaski County, violated the Open Records Act when it did not respond in writing to a proper request to City Council Member Frank DeNiro’s request for public records, according to the attorney general’s decision on the matter.

DeNiro requested to “’view the most current Burnside water plant plans - drawings and water lines,’” on April 4, 2012, according to the decision.

DeNiro asked Burnside Mayor Ron Jones to see the city’s water plant plans, and with no definite response, filed an open records request, according to his account of the process, which was mentioned in the attorney general’s decision.

He said he later asked to receive a written response and was told the mayor had made an inquiry to the Kentucky League of Cities. DeNiro said he then received an email that stated he could not see the plans because of Homeland Security issues.

According to email exchanges provided by DeNiro sent between Jones and workers at the KLC, the mayor was advised that the city would “have to give a detailed explanation of ‘reasonable likelihood of threatening the public safety by exposing a vulnerability,’ if they plan to deny these records.”

KLC Legal Services Analyst Kim Johnson also advised the mayor that denying records on those grounds would be difficult, too, because the requester was a city council member.

The attorney general’s office received DeNiro’s appeal on Dec. 4, and Burnside City Attorney D. Bruce Orwin responded to the appeal.

“‘The mayor of the City of Burnside informs me that neither the City of Burnside nor any of its departments have copies of these plans for the records requested by Mr. DeNiro,’” according to the Orwin’s response as stated in the attorney general’s decision.

Orwin said that the mayor said should the records be deemed acceptable for release that he would request the plans remain in city offices, with no photocopies or photos of the plans being permitted because of security concerns.

“We find that the City of Burnside failed to meet its first obligation under the Open Records Act, which is to give a timely written response to a written request to view public records,” according to the decision.

By failing to respond in writing, the city of Burnside also committed a procedural error. And, since the city misrepresented the advice it received from the KLC, the city’s conduct was seen as “a substantive denial of inspection.”

“At no time did the City either make the required written response or justify the withholding of any records under a specific provision of” Kentucky state law, according to the decision.

The attorney general’s office stated that it did not have enough information to say why Burnside would not be in possession of the records and referred the matter to the Department of Libraries and Archives to take action should it be deemed appropriate.

AG says broad request for emails doesn't have to be fulfilled for six months

The Boone County clerk can make a man who requested almost a quarter of a million emails wait six months to get the records, Attorney General Jack Conway said in an open-records decision released today.

On Nov. 19, 2012, attorney Paul Croushore requested emails sent from or to 10 individuals, and containing any of 69 terms, during 2011. The clerk's office told him he would have to wait six months, "given the broad scope of the request and the necessity of reviewing each of the estimated 50,000 responsive emails to redact protected information," unless he wanted to reduce the number of search terms, while reserving the right to add more later, the decision says.

Croushore appealed to Conway's office, which cited a decision this year in a case involving the Campbell County Library. It also noted that the decision urged records requesters to "frame their requests as narrowly as possible and, if unable or unwilling to do so, to expect reasonable delays in records production." That decision is 12-ORD-097. Today's is 12-ORD-228.

UK has pediatric heart program under review, won't talk about it or release key records

Kentucky Children's Hospital at the University of Kentucky is reviewing its cardio-thoracic surgery program and referring surgical patients to other hospitals, "but the reasons why are unclear," mainly because UK officials won't talk about it or release pertinent records, Brenna Angel reported Dec. 21 for WUKY-FM, the university-owned station.

Angel did identify "the surgeon at the center of the review," Dr. Mark Plunkett, left, who is on a leave of absence but "remains on staff at UK with a $700,000 annual salary," as chief of cardio-thoracic surgery. "UK denied an open-records request for the date of his most recent surgery and his patient mortality rate," citing privacy rules in the federal Health Insurance Portability and Accountability Act. It was unclear how release of such statistics, without any personally identifying information, would compromise privacy. Plunkett and officials of the medical center refused to be interviewed.

"It's been pretty hush-hush," Tabitha Rainey of Lexington, the mother of a Plunkett patient, told Angel, who reported: "Plunkett and his assistant Dr. Deborah Kozik operated on Waylon seven days after he was born. Tabitha was later told that Dr. Plunkett was taking a leave of absence." Rainey told Angel, "Months went past and they lost another patient, who was a dear friend of mine, and it was pretty heavy in the unit at the time. Then soon after I guess they decided to stop doing the surgeries and review the entire program."

Angle was able to get some records from UK and reported they showed that "The number of children Dr. Plunkett operated on this year is down around 43 percent from two years ago." UK Trustee Dr. Charles Sachatello, a surgeon who sits on the Board of Trustees' health-care committee, told Angel, "I was not aware of that, and that was never announced at the Board of Trustees meeting." Sachatello told Angel that UK should merge its pediatric heart program with the one at the University of Louisville because of the high operational costs of such programs. (Read more)

Judge rules U of L's hospital is public and subject to Open Records Act; it may appeal

The University of Louisville's hospital is a public entity, a Jefferson Circuit Court judge has ruled in a lawsuit filed to get access to the university's deals with other health providers.

Judge Martin McDonald ruled yesterday in favor of The Courier-Journal, WHAS-TV and the American Civil Liberties Union, noting that the university makes or approves all appointments to the hospital's board of directors. The university had argued that the board, and thus the hospital, was not a public agency under the state Open Records Act.

The hospital said it might appeal the ruling. McDonald gave it 30 days to give him the records being sought, along with arguments about why they should be exempt" under exceptions to the law, reports The C-J's Andrew Wolfson. "He gave the news organizations at the ACLU 20 days to respond to any claimed exemptions." The hospital has said revealing contracts would put it at a competitive disadvantage.

The suit began after the university refused to let the plaintiffs see records related to its proposed merger with Jewish Hospital & St. Mary's HealthCare and Lexington-based St. Joseph Health Care System. Gov. Steve Beshear vetoed the merger on grounds that a public hospital should not be bound by a religious organization's health-care policies. This month the hospital announced a new deal with KentuckyOne Health, which includes the Catholic system, but said reproductive services would not be affected. (Read more)

AG: Cabinet hid too much information from Inez newspaper about case of 2-year-old who died

Attorney General Jack Conway has ruled that the state Cabinet for Health and Family Services violated the Open Records Act by withholding information about the death of a 2-year-old Prestonsburg boy whose aunt and uncle have been charged with killing him.

The Mountain Citizen, a weekly newspaper in Inez, asked for all information the cabinet had on Watson Adkins, whom the state had removed from his mother's home and placed in the custody of his maternal aunt, Gladys Dickerson of Prestonsburg. The boy was found unresponsive there in September 2011.

The cabinet "initially did not provide two previous unsubstantiated reports of abuse against Gladys and Jason Dickerson to the newspaper but later supplied the reports with much of the information redacted," reports Beth Musgrave of the Lexington Herald-Leader. "The opinion said the cabinet could not redact some of that information, including the names of perpetrators involved in the unsubstantiated reports."

Conway said the cabinet also violated the records law "by failing to cite either state or federal law that allowed it to withhold or redact certain information," Musgrave writes, noting that the case is the latest "in a more that three-year legal battle between the media and the Cabinet for Health and Family Services over what can be released after a child is killed from abuse and neglect. . . . What information can be redacted or blacked out of those files is currently on appeal."

The cabinet has 30 days from Monday, the date of the open-records decision, to appeal it to circuit court.

Citizen Editor Gary Ball told Musgrave that he sought the information after hearing that the cabinet had been told the Dickersons were mistreating the boy and his four siblings. “I got heavily redacted information,” he said. “I wanted all records from the time that they were removed from the home to the time of the criminal charges.” He said the mother had taken photos of suspicious injuries to the children.

"Ball said that the cabinet had investigated two reports of alleged abuse against Gladys and Jason Dickerson before September 2011," Musgrave writes. "Ball received the reports from the cabinet but it’s difficult to tell why those reports were not substantiated." He told Musgrave, “I want the records that will show me how they made that determination that those reports were unsubstantiated.” (Read more)

Mount Olivet violated both open-meetings and open-records laws, attorney general rules

By Taylor Moak

The Mount Olivet City Council violated the Kentucky open meetings and open records acts in its actions surrounding special meetings and a request for documents, the attorney general’s office ruled in August.

The first attorney general’s decision about the council, which was released Aug. 24, said the council violated the Open Meetings Act for not complying with notice requirements before holding a special meeting on July 16.

The council also committed a violation for failing to issue until Aug. 8 a written response to two complaints made July 26, and it committed a violation if public business was discussed in an “admitted meeting of a quorum of members without proper notice,” according to the decision.

The second decision, released Aug. 30, said the council violated the Open Records Act when it did not respond in a timely manner to an open records request.

Tony Beach, a resident of Robertson County, where Mount Olivet is the county seat, filed the appeals with the attorney general’s office.

Beach said he had been attending the city council meetings to hear discussion of plans to annex a new school that is a few miles outside of the city limits. The proposed annexation would also include his home.

“I started going to the meetings because I don’t want to be within the city limits,” Beach said.

He said over the years, the city has not been run in an organized fashion.

Over the summer, he went to attend a meeting of the city council where plans to replace a vacant city council seat would be discussed.

But he said the special meeting wasn’t advertised, and he was told that it wasn’t a special meeting. He said he was allowed to stay at the meeting, but he filed a complaint after that meeting because the people of the city did not have an opportunity to attend the meeting.

When he asked for the minutes of the meeting, the council couldn’t produce them, Beach said.

In his July 26 request to the council, Beach asked for eight items, including the minutes from the July 16 and July 23 special meetings, and all emails, correspondence, minutes or notes from meetings pertaining to current or future annexation plans. Beach also requested the names of any news media that have requested to be notified of the council’s special meetings.

Beach said in an appeal letter that he filed with the Attorney General’s Office that he never received a written response to his request, but when he attended a council meeting on August 6, he was handed two of the eight items he requested without explanation.

W. Kelly Caudill, an attorney from Maysville, represents the city council. In his Aug. 13 response to the attorney general, Caudill said of the July 23 meeting that “some council members met for the purpose of introducing themselves to a prospective new council member who was interested in filling a vacancy on the council. That council and the mayor did not conduct any city business.”

Caudill said he advised the mayor and the council “that any time there is a quorum that they must comply with the Open Meetings Act and treat same as a special meeting providing at least 24 hours notice.”

In his response to Beach’s request, Caudill said the city council “must respectfully deny same as they are in the excess of what the statute requires.”

A worker at Caudill’s law firm said she spoke with Caudill and “he indicated that he has no comment.”

Beach said the attorney general’s decisions puts the city council “on notice that someone is watching” and his primary focus remains not being annexed into Mount Olivet.

“My biggest concern is being annexed into a city that doesn’t know how to be ran correctly,” Beach said.

Hustonville officials refuse to release text of proposed ordinances after first reading

Here's one we've never heard before: A city refusing to provide the text of proposed ordinances on which its city council has held first reading. It is happening in Hustonville, the small Lincoln County town on US 127 between Danville and Liberty, reports Ben Kleppinger of The Interior Journal of the county seat of Stanford:

"Hustonville City Council has passed first readings of five ordinances aimed at curtailing certain behaviors within city limits, but the city has refused to release the text of the ordinances to the public. The ordinances were read aloud by Mayor Marc Spivey at the city's Aug. 7 regularly scheduled meeting. City Attorney Carol Hill refused to give the weekly newspaper copies of the ordinances, claiming they are "preliminary documents," and City Clerk Rita Clem denied a written open-records request, saying "The Open Records Act only governs access to the existing records and not to records that will be created in the future."

Kleppinger reports, "Kentucky Press Association Attorney Jeremy Rogers, who specializes in open meetings and open records law, said there's no question ordinances that pass first reading are open record. Rogers said Hustonville's argument that the ordinances do not exist doesn't make any sense because they have all already received first readings. . . . There's nothing preliminary or private or secret about it. They've read it in an open meeting."

The newspaper is appealing denial of its open-records request to Attorney General Jack Conway. The ordinances deal with littering, illegal parking, jaywalking, wearing of masks and one that would ban "formation of any type of line and/or congregating on the sidewalks, streets or any other public property." (Read more)

Judge tells Owensboro police to give newspaper records of probe into public information officer

Daviess Circuit Judge Joe Castlen ruled Monday that the Owensboro Police Department must give the Messenger-Inquirer newspaper records relating to the department's investigation of its former public information officer.

The judge "said the city must release two documents that say why the police department's Professional Standards Unit began two investigations of [Marian] Cosgrove prior to her resignation in November," James Mayse reports for the M-I. The police department's attorney had argued that the documents were exempt from the Open Records Act because they were "internal" and because Cosgrove resigned before any administrative action was taken against her.

Editor, lawyer say open-government laws being obeyed more, but the battle will never end

By Al Cross
Institute for Rural Journalism and Community Issues

Public officials in Kentucky are doing better at obeying open-government laws, but many still have a ways to go, but Kentuckians are making increasing use of the laws to hold officials accountable.

So said the chief author of the laws, and one of the leading users of them, in an interview being broadcast on statewide television this week to mark the 20th anniversary this month of the laws' major rewriting. They also said the battle for open government will never end.

"We have to re-educate our local officials every four years about open meetings and open records," John Nelson, executive editor of Danville-based Advocate Communications, told Bill Goodman on "One to One," broadcast on KET Sunday afternoon. The show is airing on KET2 Tuesday, July 24 at 7:30 p.m. ET and Wednesday, July 25 at 7:30 a.m. ET and on KET Sunday night, July 29 at 12:30 a.m. ET. It is available online by clicking here.

Host Bill Goodman shares a laugh with Nelson, center, and Fleischaker

Nelson, a leader in using the Open Records Act, said "We use it or consider using it at least weekly" at the company's papers in Danville, Winchester, Nicholasville and Stanford. He said he has seen recently seen an increasing use of open-government laws by the public, and "I would love to see more citizens become more aware of the law."

The General Assembly passed the laws in the mid-1970s and revised them in 1992. Since them, users of the records law have made some progress in reducing an attitude among public officials that records were "their business, not the public's business," said Jon Fleischaker, a Louisville attorney who helped draft the first laws and was the Kentucky Press Association's chief counsel on the rewrites.

Fleischaker said one powerful aspect of the laws is the ability of anyone to appeal the denial of a record, or access to a meeting, to the state attorney general and get within 20 days a ruling that has the force of law unless overturned in court. He said the process for "a quick and easy determination that is inexpensive" is "close to unique" among the states.

He said the attorney general's office has become increasingly helpful with successive attorneys general: "They're very consumer-friendly, citizen-friendly." He said later that most judges have also been a boon: "The courts in Kentucky have been very favorably inclined toward openness."

A key court decision, opening the donor records of university foundations, stemmed in part from a better definition of "public agency" included in the 1992 rewrite, Fleischaker said. The loser in his lawsuit for The Courier-Journal was the University of Louisville, which claimed privacy but had "wrongly assured" donors they would remain anonymous, he said. "In most of those cases there was a deal being made" with the donor. "That's not a private matter."

KPA and others began pressing for improvement of the laws little more than a decade after their passage because newspapers had become concerned about repeated violations of the laws and difficulty in achieving their goal of open and accountable government.

In 2004 KPA, The Associated Press and journalism schools in the state conducted an "open records audit" by sending strangers to local agencies to request specific records. Nelson, KPA president at the time, said there was "largely a positive outcome, but we did find that there were problems."

Nelson said the "glaring weakness" that remains in the laws is a light penalty for non-compliance. Fleischaker said it is "a very small fine that almost never gets implemented," and "That takes litigation and expense," usually against a public agency that can "go to court at the drop of a hat."

Fleischaker said it is also rare for courts to grant attorneys fees in open-government cases, but noted that the state Cabinet for Health and Family Services was ordered to pay in its dispute with major newspapers and the Todd County Standard about child-abuse fatalities and near-fatalities.

He said the case has "become a procedural nightmare" as the state Court of Appeals considers several procedural questions and the cabinet gives The Courier-Journal and the Lexington Herald-Leader documents that are "being redacted much more than they should be," including "names of people charged in criminal court with murder." He added, "This has nothing to do with children and protection of children; it has to do with protection of people in the cabinet."

Appeals court allows Christian County cops to keep identifying information on police reports secret

The Kentucky Court of Appeals has ruled that the City of Hopkinsville can "withhold home addresses, telephone numbers and driver’s license numbers of people listed in arrest reports and criminal complaints," including people charged with crimes, crime victims, and witnesses in criminal cases, the Kentucky New Era reports. Mayor Dan Kemp told the newspaper he did not interpret the decision to apply to closed cases, but writer Jennifer P. Brown noted, "The ruling makes no distinction between police cases that are open or closed."

The case began when the New Era asked city police for records "related to allegations of stalking, harassment and terroristic threatening," Brown reports. The city refused to give the paper "reports in open cases and all reports involving juveniles. (Juvenile court proceedings are closed and the names of juvenile defendants are not released. However, state law does not require police to withhold the names of juvenile who witness or are victims of crimes.) Of the records released in the city’s initial response, the city redacted a wide range of identifying factors, including a person’s race, gender, date of birth, ethnicity, address and telephone number."

The newspaper appealed to Attorney General Jack Conway, who ruled in its favor. The city appealed to Christian Circuit Court, and after losing initially, got a ruling that it could "routinely redact addresses, telephone numbers, driver’s licenses and Social Security numbers," Brown writes. "The newspaper did not dispute the practice of withholding Social Security numbers." Soon afterward, police adopted a policy of "redacting addresses and telephone numbers on the reports it makes available every day to media outlets." The Christian County sheriff has no such policy.

Privacy trumps public interest: A three-judge panel of the Court of Appeals upheld the policy, citing the exemption in the Kentucky Open Records Act for "records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" and the court's 1994 decision that allowed redaction of employees' names, addresses, phone numbers, birthdate and Social Security number from state workers' compensation injury reports.

That court "reasoned that disclosure of such information would infringe upon the employees’ right to privacy in the home," Judge Laurence VanMeter wrote. "Such a right, which this court described as 'the right to be left alone,' is one of 'our most time-honored rights' and 'has long been steadfastly recognized by our laws and customs.'"

The law requires courts to balance the privacy right with the public's interest in disclosure, and the New Era argued that lack of the contact information would make it more difficult to report on the activities of the police department. But the court said the information itself would reveal "nothing about the Hopkinsville Police Department’s execution of its statutory functions."

The newspaper's attorney, Jon Fleischaker of Louisville, said the court failed to understand the role of journalists to investigate citizen reports that the police did not handle their cases properly. “It is often the case that we are investigating inaction as opposed to action,” he said. “The way you investigate inaction is to go to people who wanted action and didn’t get it.”

The paper was investigating police handling of such cases after a 2009 apartment fire started by a Molotov cocktail. "A man suspected of throwing the Molotov cocktail also doused a resident with gasoline, according to police. Neighbors told the New Era the suspect had threatened the couple living in the apartment, and according to court records, he had previously threatened a woman living in the apartment. He was later charged with arson."

Impact is limited, but implications may be great: Because the court said on its opinion that it was "not to be published," the decision has no precedental authority outside Christian County, but Fleischaker said it has statewide implications because another part of it defies everything he knows about the state Open Records Act, which he helped write and rewrite.

"On the question of redacting information from police reports, the appeals court shifted the burden from a public agency to those making open records requests," Brown reports. "This means that a public agency could withhold a particular piece of information in each record it releases, and it would not have to justify the redaction unless challenged."

UPDATE, June 10: The New Era is asking the state Supreme Court for discretionary review of the case. New Era Publisher Taylor Hayes said he and Fleischaker are discussing whether to appeal. Editor Eli Pace said, “Quite simply, this ruling prevents not just the media but anyone from holding law enforcement officials accountable for how they handle witnesses and victims. I’ve never seen a public agency anywhere else even try to withhold information as basic as what we were seeking. The court’s ruling is very disheartening.” (Read more)

Harrodsburg police officer stingy with information about fatal traffic accident

Five days after a traffic accident killed a prominent Mercer County farmer who was driving his tractor, a Harrodsburg police officer refused to release most details about it, citing moral grounds and a promise to the family of the 21-year-old driver of the other vehicle that "he would keep their son’s name out of the media until after his investigation was complete," Todd Kleffman of the Advocate-Messenger in Danville reported Wednesday.

Only under orders from Police Chief Billy Whitenack did Officer Jeff Pearce identify the 21-year-old as  William Phillips of Boyle County. Pearce still refused to release the name of a passenger in Phillips' vehicle or say what type of vehicle it was. "On Saturday, Mercer County Deputy Coroner Chuck Bugg said the driver of the second vehicle was airlifted from the scene but was unsure of the person’s identity or extent of the injuries," Kleffman reported. Bugg also identified John "Van" Landrum as the decedent "after Harrodsburg police released a statement saying only that one person died as the result of a two-vehicle collision on US 127."

State police are not involved in the investigation. "Pearce said he would not release any more information on the crash until after his investigation is complete, which he said could take between 10 days and a month," Kleffman reported. "Pearce told a reporter releasing information about the crash went against his morals. He also said he promised Phillips’ family he would keep their son’s name out of the media until after his investigation was complete." (Read more)

Bill that would limit release of child-abuse information appears to be dead with one day left

A bill that could increase secrecy of child-abuse records at the Cabinet for Health and Family Services failed to win passage on the next-to-last day of the legislative session and appears to be dead. "Senate Majority Leader Robert Stivers, a Manchester Republican, said some senators had questions about the bill and it appears unlikely to pass," Deborah Yetter of The Courier-Journal reports.

Senate Bill 126, originally a social-work licensing bill, includes in its Section 10 provisions of House Bill 200 to "create an outside panel of experts to review child deaths and serious injuries, with the goal of better detecting those that result from abuse or neglect. It also would create an outside office to review continuing operations of the state’s child welfare system," Yetter writes. "And it would clarify the definition of child abuse to spell out that any adult living in the home or a sibling older than 16 could be considered a perpetrator of abuse.

The bill would also limit what the cabinet must disclose about child-abuse deaths and serious injuries as a result of child abuse, so the Kentucky Press Association lobbied against it. One portion of the bill would prohibit the cabinet from releasing "the name or any identifying information of a child who has suffered a near fatality, or any information on a sibling or children living in the home of the child who suffered a fatality or near fatality," which is defined as an injury that places a child in serious or critical condition.

KPA counsel Jon Fleischaker, chief author of the state Open Records Act, testified before a Senate committee that if the measure had been law when Amy Dye, a 9-year-old Todd County girl, was killed by her adoptive brother, the public may have never known about her death, or that the brother confessed to killing her.

Westrom told Yetter the cabinet insisted on the language. The cabinet has been embroiled in legal action for more than a year over its refusal to turn over records relating to the death of children under its care. Franklin Circuit Judge Phillip Shepherd has ordered the cabinet to disclose its records in those cases while withholding minimal information, and the cabinet has appealed. For Yetter's story, click here.