Source leaks documents to Kernel; UK to still sue

While the University of Kentucky has stated it will sue the school’s independent student newspaper, the Kentucky Kernel, the documents that UK refused to release were leaked to the Kernel.

A confidential source gave the newspaper 122 pages of documents about the investigation into Associate Professor James Harwood, who was accused of sexual impropriety.

The university would not confirm the documents were authentic. 

Harwood was charged by UK with two counts of sexual assault and two counts of sexual harassment by two complainants. However, several others were identified and interviewed by UK’s Office of Institutional Equity and Equal Opportunity. They told UK officials Harwood had made inappropriate comments to them or touched them inappropriately.

Harwood was able to resign and receive his pay through the end of August. No hearings were held on the charges. 

The Kernel learned of the resignation of Harwood, and 2015-16 Editor Will Wright sought UK records on the incidents under the state's Open Records Act. The university denied the request. Wright then appealed to the attorney general, who has authority under state law to review all denials of open records. The university refused to release documents to Attorney General Andy Beshear for review, and Beshear ruled the university had violated the Open Records Act.  Such a ruling has the force of law unless it is appealed to circuit court and overturned.

The university announced it would sue the Kernel to overturn the decision. After this leak of documents to the Kernel, the university reiterated that intention. A spokesperson for the victims told the Kernel they want the documents made public with their names redacted.

For more on the AG’s opinion on the case and the University’s response click here.

For more on the documents obtained by the Kentucky Kernel click here.

Even the governor is subject to open records requests

Many of the open records opinions issued by Kentucky's attorney general deal with local governments, but it should not be forgotten that the law applies even at the highest levels of state government.

This week, the AG's office released an opinion that concerned requests to Gov. Matt Bevin and his office.

In In re: Louisville Public Media/Office of the Governor, 16-ORD-039 (issued March 16, 2016), Louisville Public Media ("LPM") had two particular requests for the governor and his office.

First, LPM requested records from the governor's office that would demonstrate any meetings between the governor or his staff and University of Louisville President James L. Ramsey or the president's staff, according to the facts of the opinion.

Second, LPM requested records from the governor's office concerning communications between the Cabinet for Health and Family Services and the governor's office regarding abortion clinics, according to the opinion.

As to LPM's first request, the governor's office claimed that it had found one responsive email, but that it was preliminary in nature, and as such, was exempt from disclosure under the Open Records Act.

As to the second request, the governor's office claimed that the responsive emails that it had found were either preliminary in nature and, thus, exempt, and/or were exempt from disclosure based on attorney-client privilege.

LPM appealed the denial of its records requests, and the AG's office asked the governor's office for the responsive documents to review them in camera.

After reviewing the documents, the attorney general's office found that the governor's office was justified in withholding the email regarding the governor's schedule as preliminary and several of the emails responsive to the requests concerning the abortion clinics as either preliminary and/or based on attorney-client privilege.

However, the AG also found that two emails relating to the abortion clinics—one that only contained a fax number and one that contained a link to a Facebook post—were improperly withheld.

The opinion also found that the governor's office procedurally violated the open records act in not first detailing the reasons it had withheld responsive records concerning the governor's schedule, but that it had subsequently cured that violation by explaining its reasons for not disclosing the records on appeal.

Though not all responsive records were required to be disclosed in this case, individuals still should be mindful of their ability to request such records and should not be afraid to do so.

This opinion serves as an important reminder that individuals can request records from even the highest executive officer in the state.

The attorney general mentioned this opinion in a Lexington Herald-Leader article Monday concerning another opinion from his office, which found that Gov. Bevin does not have the power to remove duly appointed Kentucky Horse Park commissioners.

Open meetings law, the other aspect of government transparency

A government acts through its people, and the decisions of the government are often made during open meetings.

Though this blog often focuses on Kentucky open records decisions, the open meetings decisions issued by the state's attorney general also factor into the overall scheme of individuals' ability to keep an eye on state and local governments.

A recent open meetings opinion discussed one limitation placed on public agencies in holding meetings.

In re: Lawrence Trageser/Spencer County Fiscal Court, 16-OMD-036 (issued March 10, 2016), Trageser filed a complaint with the fiscal court on January 7, 2016, charging that magistrates had met with the sheriff in less than quorum meetings to avoid discussion of the sheriff's budget in a public meeting, according to the attorney general's opinion. Trageser urged that the meetings would have collectively constituted a quorum of the fiscal court. 

The magistrates responded to Trageser on January 11, in a reply prepared by the Spencer County Attorney, and acknowledged the meetings, according to the facts in the opinion. The magistrates also acknowledged that they would have constituted a quorum.

The baseline for Kentucky open meetings law appears in KRS 61.810(1). 

That statute states that "[a]ll meetings of a quorum of the members of any public agency at which any public business is discussed or at which any action is taken by the agency, shall be public meetings, open to the public at all times . . . ." The statute then lists a number of exceptions to the general rule. 

Based on these facts between Trageser and the fiscal court, the attorney general's office found that the fiscal court had violated KRS 61.810(2). That statute reads:

Any series of less than quorum meetings, where the members attending one . . . or more of the meetings collectively constitute at least a quorum of the members of the public agency and where the meetings are held for the purpose of avoiding the requirements of subsection (1) of this section, shall be subject to the requirements of subsection (1) of this section. Nothing in this subsection shall be construed to prohibit discussions between individual members where the purpose of the discussions is to educate the members on specific issues.

The attorney general's opinion relied on its reasoning from an earlier instance that it described as "a nearly identical factual context" in which several members of the Butler County Fiscal Court had met with the county's sheriff, "in a series of less than quorum meetings, to discuss the sheriff's budget." 

Here, the AG's opinion discussed its earlier analysis that "'[t]he right of the public to be informed transcends any loss of efficiency,' and that the public’s right to be informed includes not only the right to know what decisions are made but how they are made." (The opinion cited to Lexington Herald-Leader Co. v. Univ. of Ky. Presidential Search Comm., 732 S.W.2d 884, 886 (Ky. 1987), and KRS 61.800.)

Finding that its decision concluding that magistrates for the Butler County Fiscal Court had violated the state's open meetings law, the AG opinion also found that the actions of the magistrates in Spencer County also constituted a violation of the act. 

A balancing of interests

Like so much else in the law, the Kentucky Open Records Act is an example of when a balancing of interests must occur.

The goal of the state's open records law is to promote transparency of government. See KRS 61.871. However, the obligation of public agencies to disclose certain documents is not unlimited. 

A recent attorney general's opinion dealt, in part, with one particular scenario in which a public agency can deny a records request: when the requester's actions are harassing to the governmental body.

In the matter of Minnie McCord and the Fleming County Board of Education, 16-ORD-021 (released Feb. 10, 2016), McCord had requested several types of records from the Board of Education, including financial records for specific years.

However, the Board denied her request, stating that the custodian of the records had "reason to believe that [her] repeated requests . . . [were] intended to disrupt the other essential functions" of the county schools. As such, the Board refused to permit McCord's inspection of or to provide copies of the records she requested.

The Board noted that McCord had previously requested numerous records, but then she never went to the Board's office to review those records. Further, McCord had a pending lawsuit against "the Board and/or its officers or employees." 

McCord appealed to the attorney general's office following the Board's denial of her request. In its analysis on this point, the attorney general's office quoted KRS 61.872(6), which states that:

if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.

In its response to McCord's appeal, the Board argued, relevant to the discussion here, that "McCord's repeated, voluminous requests were intended to harass the School District and to interfere with other essential operations of the School District."

The opinion, quoting one of its earlier opinions, stressed that harassment should only be invoked as an excuse "in extreme and abusive circumstances."

Based on the facts presented, the attorney general's office found no such scenario involving McCord. Instead, the attorney general's office found that the facts in McCord's case, including that she had once requested many records that she did not pick up and her "repeated requests to settle her litigation," did not demonstrate that the Board had met its high burden under the clear and convincing evidence standard required by state law.

By comparison, the opinion cited the facts of an earlier decision where harassment was found—where the "16th request [sought] almost 2000 emails, some consisting of multiple pages, on top of the approximately 17,000 pages of records . . . previously requested." In that case, the requester had not paid for the records.

However, here, McCord had only made one request and had only sought inspection, so nonpayment for records was not an issue. The attorney general's office recognized the Board's frustrations, but ultimately found that "although Ms. McCord's records requests and demands to settle litigation may rise to the level of clear and convincing evidence at some point, they do not at the time of the present appeal."

As such, the attorney general's office found that McCord's requests were not intended to disrupt the Board's essential functions. 

Other portions of this opinion dealt with the Board's denial of the specific records McCord requested. To see the full opinion, visit the attorney general's office website.

Reviewing Ky.'s open records, meetings laws

Editor's Note: I generally don't write these posts in the first person, but I thought one post doing so wouldn't hurt.

The ending of one year, and the starting of another, provides an excellent opportunity to look back on the past year. As cliche as it may be this time of year, I wanted to review some of the aspects in Kentucky open records and open meetings law from 2015.

The aim, as I have written before, of this blog is to provide the public with information on the state's open records and open meetings laws.

The attorney general's office releases new opinions every week or so, and though some opinions deal with seemingly mundane topics—for instance, procedural violations of the Kentucky acts—I believe highlighting all types of AG opinions is important because each opinion demonstrates in broader context how the state laws operate in practice.

Within the next few weeks, I will be receiving the first opinions of Andy Beshear's office, when he assumes his elected position after the new year.

In all the time that I have worked on this blog (three years), I have only read the opinions of Attorney General Jack Conway's office. I will be interested to see the style of Andy Beshear's opinions and to begin to recognize the different names of attorneys in his office.

Though I'm probably one of only a few people in the state who await the arrival of new attorney general's opinions concerning open records and open meetings issues, I look forward to each new batch because they show the development of the state's laws in practical ways.

For instance, certain aspects of Kentucky's laws seem awfully conspicuous—for example, records must actually exist for an individual to be able to request them from a state body.

But however obvious these principles may be, they are indispensable for individuals in Kentucky to know in order to be able to exercise their rights under the acts.

In 2016, I expect new advances in Kentucky's open records and open meetings laws, and I expect to write about ones that I think add to the greater narrative of shining light on the state's actions.

Happy New Year!

The ending of one's term, and the beginning of another's

In January, Kentucky will have a new attorney general when Andy Beshear takes office. (See a recent article by The State Journal in Frankfort).

During the closing weeks of 2015, current Attorney General Jack Conway's office will be issuing its final open records and open meetings decisions.

In early December, the office released several open records opinions.

One of them dealt with a seemingly obvious principle: records must exist for a public agency to be required to produce them.

In 15-ORD-217, in re: Bruce M. Tyler/Council on Postsecondary Education, the attorney general's office found that the Council did not substantively violate the open records act by denying a records request "where no responsive records existed."

In that case, Dr. Tyler had requested records relating to the resignation of the University of Louisville's provost.

In response to his request, the Council told Dr. Tyler that matters of employment at U of L for faculty and staff are under jurisdiction of the university's Board of Trustees. The Council further told Dr. Tyler that it did not have any correspondence with U of L concerning either his or the former provost's employment at the university.

When Dr. Tyler initiated his appeal with the attorney general's office, the Council argued that it did not have any records on the subject and that requests for information were outside the scope of the open records act.

As such, the Council argued that its response was sufficient, and the attorney general's office agreed.

"[A]n agency is not obligated to honor a mere request for information under the Open Records Act," the opinion read. "Furthermore, a public agency cannot afford a requester access to a record that it does not have or that does not exist."

This decision serves as a reminder to individuals making requests under Kentucky's open records act that they should be specific as to the records they desire to inspect.

Application of state law to public universities

Kentucky has nine publicly supported institutions of higher learning. (See http://cpe.ky.gov/institutions/)

As recipients of state funding, these schools are subject to the open records and open meetings requirements provided by state statute. 

Since these entities play a major role in the state, both in terms of employment and in education, denials of open meetings and open records requests often lead individuals to appeal a school's decision to the attorney general's office. 

For example, at the beginning of October, the attorney general's office released an opinion involving Western Kentucky University and its partial denial of a records request from the Bowling Green, Ky., newspaper.

In The Daily News/Western Kentucky University, 15-ORD-189, the paper's assistant city editor appealed the university's partial denial of a reporter's request for records concerning, among other items, memos between the university's human resources director and its president concerning the school's former provost. 

As to the requested memoranda, the university's general counsel advised the paper's reporter that the documents would not be released because they were internal communications.

In its opinion, the attorney general's office focused on whether such documents had been properly withheld from disclosure.

In its analysis, the AG's office noted not only that Kentucky's public policy favors disclosure of public records, but also that the state legislature has permitted exemptions in certain instances. The exception at issue in this case concerned "preliminary" documents. 

As to the nature of this exception, the opinion cited a Kentucky Supreme Court case for the proposition that: "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." 

Thus, the attorney general's office had to determine whether the university had properly invoked the use of that exemption in order to partially deny the newspaper reporter's requests. To do so, the AG's office reviewed certain unredacted evidence provided by the university in camera.

Upon examination, the attorney general's office found that some of the documents had been lawfully withheld, but that at least one document had not been. Thus, it would become the university's burden to demonstrate that the document should not be released; otherwise it must be, with any preliminary information redacted. 

Further, as to another email thread, if any recommendations had been relied upon by the university's president for any final decision, those recommendations and opinions must also be disclosed. 

Procedural violations of Ky.'s open records act

A public agency can violate Kentucky's open records act in a variety of ways, some substantive and some procedural. This post will focus on different types of procedural errors public agencies can make in responding to open records requests. 

The methods by which a public agency can lawfully deny an open records request are outlined statutorily. (See KRS 61.870 - 61.884). 

The recent opinion in Art Anderson/Woodford County Emergency Medical Services, 15-ORD-168, provides an example of a procedurally deficient response. There, the Woodford County public agency issued a timely response (within three days, as required by statute), but its response to a request concerning an ambulance run was otherwise deficient.

The attorney general's office explained in Anderson that KRS 61.880(1) provides the procedural requirements for responses under the act. Some of those requirements are as follows:

• Upon receipt of a request, a public agency shall determine within three days (excepting Saturdays, Sundays, and legal holidays) whether to comply with the request.
• The public agency shall then notify the person making the request within that three day period of its decision. 
• Further, a response that denies, in whole or in party, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.

By neither citing its statutory authority nor providing a brief explanation of how that exception applied to the records, the Woodford County public agency failed to satisfy the act's requirements. 

(Nonetheless, nondisclosure of the requested records would be permitted based on a different statute, which prohibits disclosure of ambulance run reports unless appropriate authorization is given. The attorney general's opinion explained that that statute has been incorporated into the Kentucky Open Records Act.)

Further, in Melinda Gamble Lovern/University of Kentucky, 15-ORD-174, the attorney general's office found that UK had subverted the intent of the open records act by its delayed processing of records.

There, Gamble had requested certain documents from the university, and the university had not provided the records promptly and kept delaying disclosure. 

The attorney general's office recognized that a reasonable delay was warranted, given the voluminous nature of the requests and the necessity to make proper redactions, but that the university had subverted the intent of the act since its actions did not allow Gamble to have "timely access" to the records that she had requested. 

Viewed from this perspective, Anderson and Gamble serve as reminders to public agencies that they must be aware of the procedural requirements for any response they issue to requests for public records. Responses must be timely, and any reason for denial must be statutorily supported. 

Not letting the exceptions swallow the rule

Under Kentucky's open records law, the basic policy "is that free and open examination of public records is in the public interest." As such, the General Assembly has asserted that the exceptions to the rule are to be construed strictly. (See KRS 61.871). 


This policy means that openness is to be the standard, and that reasons for non-disclosure are to be the exceptions to the general rule. This is to be true "even though such examination may cause inconvenience or embarrassment to public officials or others." (See KRS 61.871). However, the exceptions to the broad policy of openness must bend to other interests in a variety of situations. 


Recently, the attorney general's office addressed whether certain records held by a county's circuit court clerk should be subject to the state's open records laws. 

In re Orenthal Mitchell/Jefferson Circuit Court Clerk, 15-ORD-156, Mitchell appealed to the attorney general's office after the Jefferson Circuit Court Clerk was unresponsive to his request for a copy of child support orders, visitation and custody orders, and judgments entered by Jefferson County in reference to him. 

In its opinion, the attorney general's office adopted analysis from one of its previous decisions and found that records in the custody of circuit and district court clerks are properly characterized as court records. As such, the Open Records Act does not apply to those types of records. Further, the opinion noted that the attorney general "has long recognized that neither circuit nor district court clerks are subject to the provisions of the Open Records Act." 


Though public policy favors openness and disclosure of public records, Kentucky law recognizes that not all records must be subject to the strictures of the open records law for a variety of reasons. Here, the attorney general's office stressed that, as it had stated in its previous opinion, "[s]imply stated, disputes relating to access to court records must be resolved by the court." 

Defining 'public agency' under Kentucky's open meetings, records laws

One of the issues that can arise under the state's open meetings and open records laws is that an entity can claim that it is not a public agency. A determination of a body's status as a public agency affects whether it must comply with the state's openness laws. 

Thus, defining what is a public agency under state law is an important topic for understanding the requirements placed on such agencies in Kentucky.

KRS 61.805 defines public agency for open meetings purposes, and KRS 61.870 defines the term for open records purposes.

The following list includes the entities Kentucky's open meetings law defines as public agencies. Though the statute can be a bit dense to read, setting out the statute in full provides a basis for understanding two recent decisions of the attorney general's office that addressed whether bodies are public agencies. 

Under Kentucky's open meetings law, a "public agency" is defined as:

• (a) every state or local government board, commission, and authority; 
• (b) every state or local legislative board, commission, and committee;
• (c) every county and city governing body, council, school district board, special district board, and municipal corporation;
• (d) every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
• (e) any body created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act in the legislative or executive branch of government;
• (f) any entity when the majority of its governing body is appointed by a “public agency” as defined in paragraph (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a “public agency,” a state or local officer, or any combination thereof;
• (g) any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff or a committee formed for the purpose of evaluating the qualifications of public agency employees, established, created, and controlled by a “public agency” as defined in paragraph (a), (b), (c), (d), (e), (f), or (h) of this subsection; and
• (h) any interagency body of two (2) or more public agencies where each “public agency” is defined in paragraph (a), (b), (c), (d), (e), (f), or (g) of this subsection. 

In re: Robert Barker/Bourbon County Board of Assessment Appeals, 15-OMD-154, the attorney general's office found the county board had failed to refute Barker's allegation that it was a public agency under the state's open meetings act.

There, Barker had appealed to the attorney general's office after he felt the county board failed to adhere to statutory requirements for a meeting in June, at which his property tax assessment appeal was heard. 

In its analysis, the attorney general's office stated that it could "find no express or implied exclusion for the board from the requirements of the Open Meetings Act." The attorney general's office also could not locate any statute or any administrative regulation that addressed "the board's public hearing process or its exclusion from the requirements of the Open Meetings Act." 

Thus, the attorney general's office sought to determine whether the county board fell into a definition of public agency provided under the open meetings law and found that:

[t]he Bourbon County Board of Assessment Appeals is a local government board that is created pursuant to state statute whose governing body is appointed by a public agency, the Bourbon County Fiscal Court, and two local officers, specifically, the county judge/executive and the mayor.  It therefore falls squarely within the definition of the term “public agency." 

As a public agency, the county board had to comply with the open meetings act's requirements, and it failed to do so when it excluded Barker from portions of its meeting without citing a statutory basis for its actions, the attorney general's office found.

Similarly, in re: Jim Waters/Kentucky Board of Education, 15-OMD-155, the attorney general's office found that a committee of the board of education was a public agency under Kentucky's open meetings law.

There, Waters, president of the Bluegrass Institute for Public Policy Solutions, challenged the board of education's denial of his open meetings complaint. In his complaint, Waters asserted that a committee of the board had failed to observe statutory requirements.

In its review, the attorney general's office noted that "public agency" is broadly defined under Kentucky law. Since the committee had been created by the board and was charged with a specific task---that of managing and narrowing the search for a firm to help the board find a new commissioner of education---the attorney general's office agreed with Waters' characterization of the committee as a public agency.

In both of these decisions, a finding by the attorney general's office that an entity was a public agency had ramifications for what was expected of the body under Kentucky law.

The key point is that if a particular group is found to be a public agency, it must comply with the statutory requirements of the state's open meetings and open records laws.

Keeping an eye on Kentucky's public agencies

The aim of this blog is to provide citizens of Kentucky with analysis of open meetings and open records decisions by the state's attorney general.

Every state in the nation has laws that seek to provide the public with access to certain information and documents of governmental agencies. These laws are sometimes labeled "sunshine laws" because they expose what public officers or departments might otherwise prefer to keep hidden or in the dark.

Kentucky's legislature has explained, through statute, that the public policy of the state's open records law is based on the idea "that free and open examination of public records is in the public interest." As such, the exceptions allowed under the law for types of records that need not be disclosed are to be strictly construed. (See KRS 61.871).

In Kentucky, individuals who feel that a public agency has not complied with the state's open meetings or open records laws may appeal to the attorney general for an opinion on the matter. If the individual or agency is not satisfied with the attorney general's decision, an action may be filed in the appropriate circuit court.

A helpful overview of the state's open meetings and open records laws from a public agency's perspective is available on the attorney general's website. A guide for individuals is also available. Further, a video that the Scripps Howard First Amendment Center produced for public officials is available here.

Public meetings and public records opinions are usually issued on a weekly basis. In order to remain timely, new posts will be added to this blog shortly after such opinions are issued.

The following decision was released Aug. 6, 2015, and provides an example of the types of issues the attorney general's office reviews in relation to Kentucky's open meetings and open records laws.

• In re: Kelly Wiley/Cabinet for Health and Family Services, 15-ORD-144, the attorney general found that the Cabinet had subverted the intent of the open records act by trying to impose a $75 per hour fee on the retrieval of requested documents.

• Under Kentucky law, a "public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required." (See KRS 61.874). 

• Though the record request had not been denied in this case, the individual was still permitted by state law to appeal to the attorney general's office. (See KRS 61.880). 

• In the opinion, the attorney general's office found that "[i]n attempting to impose an excessive fee for the retrieval of documents rather than charging the cost of reproduction, CHFS subverted the intent of the Open Records Act short of denial of inspection."

• The attorney general's office cited several of its former opinions, which recognized that public agencies may charge for costs of reproduction but not for costs of retrieval. 

This blog will not seek to discuss every opinion of the attorney general. Instead, more attention will be given to opinions that involve well known public agencies, such as those affecting institutions of higher learning or state cabinets, or opinions whose reasoning demonstrates a policy in favor of disclosure. Decisions by Kentucky state courts will also be reviewed when applicable.

From time to time, this blog may also include posts related to the open meetings or open records decisions of other states or of requests made under the federal Freedom of Information Act.

UK properly denied certain requests by CNN, but it erred in denying others

The University of Kentucky properly denied certain requests from CNN relating to the university’s pediatric cardiothoracic program, but it erred by not providing the news network with sufficient information about records that the university claimed did not exist, the attorney general said in an August 6 opinion.

The opinion, In re: CNN/University of Kentucky, concerned requests that CNN Senior Medical Correspondent Elizabeth Cohen made to the university on February 13 and March 27, 2014.

Cohen requested records relating to UK’s pediatric heart surgery program.

The university properly made two denials, the attorney general said.

First, the university was not required to provide “the raw data consisting of the total volume of surgeries, number of deaths, and number of survivors related to its pediatric cardiothoracic program, as those numbers are less than five.”

The university had previously disclosed mortality rates and feared that disclosing the raw data could allow individual patients to be identified, and the attorney general found that the releasing of this data was precluded both by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and by KRS 61.878(1)(a).

Both of these laws, the opinion notes, share an aim of protecting patient privacy, and the disclosure of the raw data sought by CNN could allow individual patients to be identified.

The university relied on guidelines of the National Center for Health Statistics in denying the request.

These guidelines, according to the opinion, prohibit (1) the disclosure of quantity figures that are less than five and (2) the disclosure of numbers greater than five if such disclosure could result in numbers less than five being derivable through subtraction or other calculation.

The university argued that the guidelines are “helpful in determining whether there is a reasonable basis to believe that an individual patient can be identified,” the opinion stated.

The attorney general agreed and held, using the guideline’s “less than five” baseline, that “a reasonable basis exists for UK’s nondisclosure of this raw data.”

Second, the attorney general said the university properly withheld reports submitted to it by the Society of Thoracic Surgeons “because the records were compiled and maintained for scientific research.”

The attorney general relied on KRS 61.878(1)(b), which provides an exception to disclosure for “[r]ecords confidentially disclosed to an agency and compiled and maintained for scientific research.”

The attorney general noted that UK had said the research was disclosed to it “‘with the explicit understanding that the University would not disclose the information to others.’”

Upon reviewing the reports, the attorney general said that the introductory pages did contain a number of statements of confidentiality and restrictions on disclosure by the university without the Society’s permission. Because of this, the attorney general found that UK did not err by denying this part of CNN’s request.

The university did err, however, by failing to provide CNN with sufficient information about certain withheld records to permit CNN the opportunity to dispute those records’ claimed nonexistence.

According to the opinion, the university “denied CNN’s March 27 request for collated mortality rates, and raw numbers of the total volume of surgeries, number of deaths, and number of survivors for the program from January 2006 to December 2010 and categorized by the five ‘STAT’ categories, nine named procedures commonly treated as quality indicators, and, for the same period but extending to October 2012, three identified procedures.”

The university denied the request, in part, because it claimed the records were nonexistent, the opinion stated.

While the university was correct in that it has no obligation to create a record that does not exist, the university failed to identify which of the requests it would not honor on that basis, the attorney general said.

The university’s actions also did not satisfy a standard concerning open records requests recently explained by the Kentucky Supreme Court, the opinion stated. In City of Ft. Thomas v. Cincinnati Enquirer, the Kentucky Supreme Court said an agency must be held to its burden of proof by a sufficient factual showing to justify an exemption.

Here, UK failed to specify which requests would not be honored on the basis of the claimed records’ nonexistence, according to the opinion.

“While it cannot produce a nonexistent record, and is not legally obligated to create one, UK is obligated to provide CNN with sufficient information about the nature of the record or records to which access was denied based on it[s] or their nonexistence to permit CNN ‘to dispute the claim and the court to assess it,’” the attorney general said.