Judge says UK violated open records law, orders documents released

The University of Kentucky violated the state’s Open Records Act by improperly withholding documents about a failed business deal between UK HealthCare and a Hazard cardiology firm from the Herald-Leader, Fayette Circuit Judge Pamela Goodwine ruled Tuesday.

UK also violated the Open Meetings Act with an unannounced Power Point presentation about problems with the business deal to the UK Board of Trustees during what was supposed to be an informal dinner in May 2016, Goodwine ruled. UK failed to keep minutes of that meeting and refused to provide a copy of the Power Point presentation afterward once the Herald-Leader requested it.

No one from the newspaper was present at the meeting, which did not have an agenda.

“The court agrees that there appears to be some sort of intent on the part of the university to mislead the public about the nature of the May 2, 2016, ‘dinner’ meeting, implying that it was merely a social event,” Goodwine wrote. She issued an order instructing UK to provide the newspaper with the Power Point presentation and a related audit.

UK sued the Herald-Leader last September to block release of the documents after the newspaper won a favorable opinion from Attorney General Andy Beshear’s office that also found violations of the Open Records Act.

“When a public institution like UK spends public money, it must provide to the public detailed information about its use of that money,” Thomas Miller, the newspaper’s attorney, said Thursday. “I think that’s the big picture here. With regard to the (Hazard cardiology firm) … there’s a huge public right to know about the money that was lost and how and why.”

UK is considering whether to appeal Goodwine’s decision, university spokesman Jay Blanton said. Blanton said UK is “very pleased” that the judge agreed with UK on one point, that UK does not have to release itemized legal billing records because the newspaper already has the total paid to the attorney in question.

“We are carefully reviewing — and considering appeal on — how other aspects of the court’s decision would impact the extent of protections offered by attorney-client privilege,” Blanton said.

The legal battle began with the Herald-Leader’s request for the May 2016 Power Point presentation by lawyer David Douglass about the Appalachian Heart Center, which UK acquired in 2013. UK paid $1 million to Douglass and $4 million to the federal government because of billing problems with the clinic.

The newspaper also requested an audit by UK’s chief compliance officer that turned up the billing problems in Hazard as well as any other documents in UK’s possession that were related to the clinic.

In her ruling, Goodwine struck down several reasons UK cited for withholding the requested documents. The clinic audit, for example, is neither “communications within the meaning of attorney-client privilege” nor “confidential communications” made for the purposes of taking legal action, both of which are allowable exemptions under the open records law, she wrote.

“There is no indication that the audit was prepared in anticipation of litigation or for trial,” Goodwine wrote. “The university’s general awareness that non-compliance with fraud and abuse laws may lead to litigation is not enough to place this document within the work-product doctrine.”

Likewise, because there was “no pending or proposed litigation,” the UK Board of Trustees was not allowed under the open meetings law to go into executive session and close its May 2016 dinner meeting to the public, and in fact, it did not, Goodwine wrote. Therefore, any documents presented at that meeting are a matter of public record, she wrote.

“Either the dinner was a regular called open meeting, such that the board could have no legitimate expectation of confidentiality, or it was not,” Goodwine wrote.

“If it was not, then the board was required to cite the provision of (the open meetings law) that would allow it to enter into closed session and adhere to the requirements for conducting a closed session. While the university dismisses those requirements as a ‘technicality,’ technical compliance with the Open Meetings Act is exactly what the law demands,” she wrote.

This story was originally published June 29, 2017 at 1:39 PM with the headline "Judge says UK violated open records law, orders documents released."