Attorneys general rule against University of Kentucky, say records must be disclosed





KENTUCKY— The University of Kentucky has violated state open records laws twice within the last year, according to opinions from the Office of the Attorney General.

The state attorney general declared UK to be out of compliance with the state’s open records laws after it denied a request for meeting minutes from a committee which deliberates faculty salaries.

In an opinion issued last month, Kentucky Attorney General Andy Beshear wrote that the UK Healthcare Compensation Planning Committee is a public agency and “failed to meet its statutorily assigned burden of proving that it conducted an adequate search for requested meeting minutes.”

In January, UK medical school alumnus Lachin Hatemi requested all committee meeting minutes dating back five years. About a week later, the university told him there were “no documents responsive to [the] request,” the opinion states.

Hatemi told SPLC he wanted to investigate how the committee spent its $1.5 billion budget and how the committee decides doctor pay.

“It’s not transparent, no one has a clue,” Hatemi said. “We don’t know how $250 million is distributed (among faculty).”

According to the opinion, UK counsel “described no effort on the part of any employee or committee member to conduct an actual search for meeting minutes and refused to describe any details of a search.”

William Thro, UK’s general counsel, said the university conducted a “good faith” search when the records request was received. He said the committee meets occasionally, but does not take minutes.

Beshear concluded that because the College of Medicine dean controls the committee and many members are appointed and charged with advising the dean on faculty salaries, it is a public agency and therefore subject to open meeting laws.

Because the committee is considered a public agency, according to the opinion, there is a presumption meeting minutes exist.

The university proposes only high-ranking officials or governing bodies of a public agency could appoint a committee that must comply with open government laws.

“Were the statutes intended to be construed in the narrow fashion the University suggests, only the highest ranking officials or governing bodies of a public agency could appoint a committee that is subject to the Open Records and/or Open Meetings Acts and only a decision- or policy-making committee would fall within its reach,” the opinion reads.

Beshear listed other open meeting decisions involving the University of Louisville where university committees were deemed public agencies even though they were not “policy-or decision-making bodies” and their members were not appointed by university officials.

Thro said the university believes Beshear’s conclusion is incorrect. He said the university has not made a decision about whether to appeal.

“The Healthcare Compensation Committee has no policy-making authority and, thus, is not subject to the Open Meetings Act,” Thro said in an email. “Therefore, it does not have a legal obligation to keep minutes.”

Additionally, former Kentucky Attorney General Jack Conway issued an opinion in November stating a medical foundation affiliated with the university is a public agency and subject to open records laws. The Kentucky Medical Services Foundation, a nonprofit organization that pays UK doctors, refused to completely fulfill a records request and cited “confidentiality restrictions,” according to the opinion.

Hatemi requested financial statements from the foundation, including employee salaries, donations, audits and the foundation’s sources of income, according to the ruling.

Conway reasoned the foundation is considered a public agency because it is required to obtain the university’s written consent before altering or amending its articles of incorporation or adopting “any by-law or other operating practice which would effectively alter the character of said foundation,” the opinion states.

Conway also cited a previous case in which the University Medical Center was deemed a public agency because it was established and controlled by the University of Louisville.

“Our analysis can yield a single result: the Kentucky Medical Services Foundation, Inc., was established and created by the University of Kentucky and its College of Medicine, and the University and the College of Medicine control the Foundation,” the opinion states.

Conway said the foundation “failed to meet its burden of proof in denying all or part” of Hatemi’s request, according to the opinion.

The university filed an appeal against Hatemi in December and no action has been taken in the case since January. The attorney for the foundation told SPLC it was against policy to comment on pending litigation.

In the notice of appeal, the foundation stated privacy laws, including FERPA and HIPPA, required KMSF to redact the information released to Hatemi. KMSF “adamantly denies” it is a public agency and states it should not be subject to open records laws, according to the complaint.

Marc Randall, KMSF president, said in a statement that students and patients should not be subject to having their confidential information available to the public, the Lexington Herald-Leader reported in December.

“UK always appeals Attorney General opinions that state that the university should disclose records concerning patient privacy and patient safety,” Randall said.

In his response, Hatemi alleged KMSF was a “shell corporation” in which the top administrators at UK Healthcare and the UK president were benefiting from “the labor of hundreds of UK physicians,” the response states.

“President of the University of Kentucky and top administrators within UK Healthcare had always been aware of KMSF’s finances and used their dual appointments at UK and KMSF to transfer funds seamlessly between KMSF and UK to fund certain projects without seeking approval of UK Board of Trustees,” the response reads.

Eighteen clinical department heads in the UK College of Medicine make up the foundation’s current board along with six directors who are elected to the board.

Hatemi said he has requested “thousands” of records from UK and has only been successful in receiving records 20 to 30 percent of the time.

SPLC staff writer Kaelynn Knoernschild can be reached by email or (202) 974-6318.

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