The University of Kentucky violated the Open Meetings Act when it did not keep minutes from a dinner meeting of the Board of Trustees, the Kentucky Attorney General’s office has ruled.
UK is now required to produce minutes that reflect the “substance of the presentation” made during the dinner by an attorney.
The July 25 opinion was in response to a complaint made the Herald-Leader after UK denied a request for minutes from a May 2 trustees meeting. At that dinner meeting, the board was briefed by a Washington, D.C. lawyer about $4 million it reimbursed the federal government because of billing problems at a Hazard cardiology clinic owned by UK.
Board members listened to and discussed the presentation, UK officials said, but the board did not vote or take any official action.
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The board typically meets for dinner the night before its regular meetings. Because a quorum of members are present, the meetings are open to the public, but traditionally, official business does not occur. No Herald-Leader reporters were present at the May 2 meeting.
The opinion agreed with UK that it was not required to post a detailed agenda because the dinner meeting was part of its regular meeting schedule, which had been properly advertised to the public. But, the opinion said, UK was incorrect in stating that minutes are only required if action was taken.
According to past opinions, “the requirement that the agency record minutes of its meetings is triggered regardless of whether action is taken at the meeting,” the opinion states. “Accordingly, in not creating minutes of the dinner meeting, UK violated the Open Meetings Act.”
UK officials said they would review the decision. Unless appealed in circuit court, opinions of the attorney general on open meetings and open records issues carry the the weight of law.
“We are pleased the attorney general acknowledged that UK complied with the Open Meetings Act with respect to whether an agenda is necessary for a meeting that is properly promoted, as the meeting in question clearly was,” said UK spokesman Jay Blanton. “We are reviewing the decision with respect to whether minutes are required for every meeting — even those that involve attorney-client privilege and in which no decisions are made.”
UK argued that the discussion was “attorney-client privileged,” but the information was presented in an open meeting and the board did not cite an exemption to the Open Meetings Act and vote to go into closed session.
“Here, there is no expectation that the communications would remain confidential, where there is a reasonable expectation that members of the public may attend,” the opinion says.
The opinion points out in a footnote that boards can go into executive session to discuss proposed or pending litigation, but not to receive general legal advice.
“The attorney-client privilege is not a viable exemption to the Open Meetings Act except as attorney-client discussions involve” pending litigation, the opinion says. “UK invokes the attorney-client privilege for the presentation but states that the discussion was for the purpose of legal advice, not pending litigation. If UK has entered into a closed session, it would have been improper; however it did not actually go into closed session.”
The university has denied the Herald-Leader’s request for a copy of the presentation made to trustees during the meeting, a decision the newspaper has appealed to the attorney general.
“Although we have not yet received a response to our request to the attorney general for the documents presented during the meeting, we are optimistic that they will soon be provided to the Herald-Leader,” said Lexington attorney Tom Miller, who filed the complaint on behalf of the Herald-Leader.
He said the opinion was a victory for government transparency.
“The information presented at the Trustees’ dinner meeting directly concerned the university’s management of funds, and so is exactly the type of information that our legislature recognizes that the citizens of the commonwealth must receive in order to hold their public entities accountable,” Miller said.
In June, the Attorney General’s office found that a UK foundation violated the Open Records Act when it denied a former medical student access to audits made of the Hazard cardiology clinic. Those audits were public records because the attorney general has previously ruled that the Kentucky Medical Services Foundation is a public entity. The foundation has appealed both those decisions in Fayette Circuit Court.
The foundation also denied the Herald-Leader’s request to view audits of the cardiology clinic, a decision the newspaper has appealed to the attorney general.