UK wrongly withheld documents from Herald-Leader, attorney general rules

The University of Kentucky violated the state’s Open Records Act by refusing to disclose documents that the Herald-Leader requested concerning a Hazard cardiology practice that UK once owned, the attorney general’s office has ruled.

The decision, which carries the force of law unless appealed in Fayette Circuit Court, is the latest in a half-dozen recent defeats for UK under the Open Records Act and the Open Meetings Act. UK President Eli Capilouto announced last month that the school would sue the Herald-Leader and the Kentucky Kernel, the student newspaper, to overturn other unfavorable decisions handed down by the attorney general.

“UK has made the decision that they’re not going to comply with the law,” said Thomas Miller, attorney for the Herald-Leader. “Whether there’s something to hide, who knows? I’m not suggesting that there’s any kind of impropriety. But the law is clear that transparency is required of public institutions.”

“I would also note that UK is spending a lot of money on lawyers to fight these battles,” Miller said.

UK had no comment Friday, spokesman Jay Blanton said.

In the latest case, the Herald-Leader asked UK for a copy of a presentation made May 2 to the UK Board of Trustees by lawyer David Douglass regarding the Appalachian Heart Center in Hazard. The newspaper also asked for records showing money paid to Douglass’ law firm and for copies of audits of the cardiology practice, which separated from UK after questions were raised about its billing.

UK refused to provide the Herald-Leader with most of those documents, citing five separate legal exemptions under the records law, including executive privilege, attorney-client privilege and the confidentiality required by the federal Health Insurance Portability and Accountability Act.

After the Herald-Leader appealed to the attorney general’s office, Assistant Attorney General Matt James asked UK to provide him with the records for a private, or in camera, review, so he could decide whether the exemptions it cited were relevant. UK refused.

“Given that UK refused to provide any of the disputed records for in camera review, we can only find that UK failed to meet its burden to establish any of its claims of exemptions,” James wrote in his decision, issued Wednesday. “We are not prepared to accept, without independent confirmation, that all of the responsive documents are shielded from public inspection.”

James went on, in a lengthy footnote, to find fault with each of the five exemptions UK cited in its denial to the Herald-Leader. For example, UK waived attorney-client privilege when it allowed Douglass to make his presentation at an open Board of Trustees meeting. Regarding the patient confidentiality required by HIPAA, James said, UK can redact identifying information about patients from documents that contain them, but it cannot use that law to justify withholding all records related to a medical facility.

This story was originally published September 2, 2016 at 1:41 PM with the headline "UK wrongly withheld documents from Herald-Leader, attorney general rules."