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.”

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.”

Frankfort paper calls Kentucky State's 'gag order' outrageous, at odds with a university's mission

This editorial from The State Journal in Frankfort is published in its entirety because the newspaper's editorials are behind a pay wall.

A gag order is a means, usually issued by a court, for restricting information from being made public.

A judge may not want sensitive information from a closed hearing to be discussed publicly, may need to protect the privacy of victims or minors, or may feel it necessary to keep trade or military secrets from being revealed.

Negatively, however, gag orders may also be used as a form of censorship to limit freedom of expression or freedom of the press.

State Journal editorial cartoon by Linda Boileau

Unbelievably, a type of gag order is apparently in existence at Kentucky State University after being discussed at its Board of Regents meeting Wednesday in Lexington.

Regents discussed that if approached by a student, staff member or faculty member, they should refer them to KSU President Mary Sias, who will in turn speak to Board Chair Karen Bearden to place them on the agenda to speak at a future board meeting.

Furthermore, the board also discussed how to react when approached by a reporter wishing to speak to them about a dissenting vote on an issue. Bearden asked them to respond with “no comment” and inform her about it, so she could contact Sias about the best way to respond.

This discussion by a public university’s board of regents — at any college or university — is not only outrageous, but is completely incongruous with what we hope college students are being taught.

A majority of the regents are not employees of the university. While the board includes a faculty, staff and student representative, the other eight are appointed by the governor. No one is higher on the organizational chart than a member of the Board of Regents. They do not report to the university president, rather the university president reports to them.

A member of a school’s faculty or staff may feel so deeply about an issue he or she wishes to speak to a board member rather than an administrator. If the policy is to tell that person to instead speak to the university president, faculty and staff members would certainly be more reluctant to come forward.

Plus, they may wish to speak in private, not be placed as an item on a future meeting agenda.

The men and women appointed to university boards should be thoughtful, intelligent people. They have offered to serve in a leadership role at an institution of higher learning and they bring together diverse and varied views and backgrounds.

So we refuse to understand why they wouldn’t be allowed to speak — and more importantly wouldn’t want to speak — to faculty, staff or a member of the press.

We know we are outraged by the actions of the board and we believe others should be as well, among them the governor, the taxpayers, the faculty, the staff and the students.

The members of the Board of Regents are not appointed to be puppets and mimes. They are appointed to be independent thinking individuals willing to express their viewpoints.

There are important reasons why laws govern open meetings and open records, especially that the public has the right to know how its tax dollars are being spent.

Similarly, appointed and elected individuals should have every right to speak freely to those they oversee and those who report on their actions.

That the Kentucky State University Board of Regents would essentially decide to say no comment until they ask the university president how they should respond is a slap in the face of all that governing boards should be about.

We suggest the members of the KSU Board of Regents undo this ridiculous policy or let the governor find people willing to intelligently speak to the public that he can appoint to replace them.

Illegal meetings held by Danville commission, court says; and by Murray regents, attorney general says

"Two rulings came this week — one in circuit court, one by the attorney general — that public agencies have violated the state’s open meetings law," David Thompson writes in his weekly missive as executive director of the Kentucky Press Association.

"In Boyle Circuit Court, a judge ruled Thursday that the Danville City Commission held an illegal session and in the much-publicized Murray State University situation, an AG’s ruling on Wednesday said the Board of Regents violated the law by discussing the MSU president’s situation the night before the board’s official meeting."

Thompson's post has a short story from Todd Kleffman of The Advocate-Messenger and draws from a story in The Paducah Sun distributed by The Associated Press. To read it, click here.

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

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)

Kentucky State University joint regent committees failed to follow provisions of Open Meetings Act

The attorney general's office has upheld an appeal by The State Journal of Frankfort and reporter Katheran Wasson that committees of the Kentucky State University Board of Regents violated the state Open Meetings Act earlier this year.

The Finance and Administration Committee and the Audit Committee jointly held a closed session meeting on Jan. 27 to discuss an external audit. Before entering the closed session, the committee failed to pass a formal motion to go into closed session and cite the reason for the session, as required by the act.

Wasson submitted a written complaint describing the violations to the presiding officer of the meeting, Charles Whitehead. In her complaint, she requested that the full board acknowledge, in writing, that the closed committee session violated the law. She also requested that “members of the Finance and Administration and Audit Committees make public any notes, minutes or recordings taken during the closed session," and if no such records were created, Whitehead" make a public, written statement of what transpired during the closed session and what was discussed in detail." Finally, Wasson asked that the board "vow, in writing, to never meet in closed session again without citing a specific statute and taking a formal vote" and that a written statement to this effect "be shared with all members, in case they ever find themselves serving as chairperson of a committee or presiding over a meeting."

Under state law, [KRS 61.815(1)(b)] the following are required as conditions for conducting closed sessions: Notice must be given in an open meeting of the general nature of the business to be discussed in closed session, the reason for the closed session, and the specific exception authorizing the closed session; closed sessions may be held only after a motion is made and carried by a majority vote in open, public session; no final action may be taken at a closed session; and no matters may be discussed at a closed session other than those publicly announced prior to convening the closed session.

According to Wasson's transcript of her recording of the meeting, Whitehead said, "I’d like to take this committee into closed session so that, so that, so that – I usually do this, just to hear from the auditors, just so that they can say anything that they might want to say. Can we do that?" Wasson said one committee member then looked at Lori Davis, the university’s general counsel, who approved.

Regents Chairwoman Laura Douglas denied the meeting was illegal and rejected Wasson's remedial steps, saying the committee closed the meeting under an exception that allows closed discussion of on threats to public safety. Attorney General Jack Conway ruled that the exception was clearly inapplicable and the meeting was illegal.