UK responds: We are transparent, but reserve the right to protect some records
Over the last several years, the University of Kentucky has received thousands of requests for records and documents. We receive more such requests than virtually any other public agency in the state. We have complied fully, without question, and more often than not, very quickly with more than 90 percent of them.
We are a public agency. It is our legal obligation and our responsibility to be transparent. Indeed, even with a small staff to handle these requests, most people and reporters will tell you we are one of the most responsive institutions to work with on these matters. It’s the right thing to do and the right way to act.
In this same time period, though, there have been a handful of cases where the statutory and constitutional privacy rights require us to protect records, the attorney-client privilege applies, or the records represent the advice of staff to senior administrators, We’ve even gone to court, over years in a very small number of cases, to do so. That handful of cases revolves around three issues and three exceptions that the law – and our moral obligations – provide for:
▪ Protecting the privacy of students, patients, and victim/survivors. In short, we believe – and both the federal constitution and federal statutes confirm – that privacy should extend to a student’s academic record or a record that details how a student has been a victim, such as a sexual assault. In the Kernel case, the victims of sexual assault agreed with the university and begged the Court to keep their records private. Similarly, no patient’s personal and private health records should be disclosed without their consent. Nor should records be disclosed when the subject involves such a small number of patients that talking about a procedure will likely lead to someone’s identity being disclosed without their approval.
▪ Protecting attorney-client communications and the work product doctrine — whether that’s a large institution like UK or a private individual, there is a right to communicate with attorneys and receive legal advice. Moreover, materials prepared in anticipation of litigation are protected.
▪ Protecting the preliminary recommendations of administrators. In the case where the Herald-Leader and UK are at odds most recently, the issue is the University’s ability to work with our attorneys, consultants, health care compliance officers, and health care administrators to conduct a legal investigation in anticipation of litigation.
That legal investigation centered on a discrepancy between the amounts billed for medical procedures and the documentation of those procedures. Such discrepancies may be violations of various federal laws and there was a real possibility of litigation by the federal government or others against the University. Given the discrepancies, the university needed to determine what went wrong, how to fix the problem, and how to prevent it from happening again. Ultimately, we determined that UK HealthCare should repay approximately $4 million.
The discrepancy was not caused by any sort of malfeasance, but by errors in implementing a new billing system. By repaying the money, the University fulfilled both its legal and moral obligation. That review couldn’t have been conducted without the confidentially afforded by attorney-client privilege and work product doctrines. The law respects the right of administrators and others to make recommendations and have candid conversations with attorneys and others about the appropriate actions to take. Such candid conversation is essential to the ability to objectively discover and report facts, without unnecessarily embarrassing anyone – goals we hope the media would share.
In a few cases, UK and some media outlets, such as the Herald-Leader, have disagreed with the university’s efforts to protect the privacy of students, patients, and sexual assault survivors as well as our efforts to invoke legal privileges available to anyone needing legal advice or facing litigation.
More often than not – far more often than not – we agree. That’s a fact. In those cases where we are on opposite sides, it is simply a matter of a respectful disagreement over where the line should be drawn between full disclosure of records and the need for privacy to protect victims, patients, or the right of attorney-client privilege and preliminary recommendations and work product.
These aren’t ever easy issues. They are complex and there are lots of different views. That’s why, for example, the Supreme Court has agreed to review the Kernel case after the trial court and Court of Appeals disagreed and the Court of Appeals divided 2-1. But we believe – and we hope the Herald-Leader would agree – that individuals should have the right to go to court when there is a difference of opinion over a point of law. Institutions, like UK, should have the right as well. We have exercised that right, sparingly and only in the most serious of cases, to protect the rights of patients and students.
Jay Blanton is the associate vice president and chief communications officer of the University of Kentucky.