Two steps toward open government, one step back

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A Fayette circuit court dealt the University of Kentucky a substantial blow in an opinion issued on June 27 in which it declared that the university violated both the open records and open meetings laws in responding to the Lexington Herald-Leader’s records request and meetings complaint.

The university – whose track record in open records and meetings compliance is less than impressive – refused to release an audit conducted at its chief compliance officer’s direction following receipt of complaints concerning a then-recently acquired heart clinic in eastern Kentucky and a related PowerPoint presented to the board of trustees by outside counsel at a regularly scheduled dinner meeting held the night before its May 2016 business meeting.

The university characterized the audit as a preliminary record and withheld it under the open records exceptions for preliminary drafts and notes and preliminary memoranda in which opinions are expressed.

The problem? Those exceptions have no application to records that are adopted by an agency as part of its final action. And in this case, the audit was adopted as the basis for the university’s decision to refund payments made by the complainants in full.

The university also argued that the audit and PowerPoint were not subject to public inspection because they constituted attorney-client/work product privileged materials. These privileges are regularly invoked by the university as a fallback position for denying access to any record that passes through university counsel’s hands.

Not every record that agency counsel reviews is protected by the attorney-client/work product privilege. If, for example, counsel reviews the menu for a board dinner meeting, is the menu excluded from public inspection? Given the university’s propensity for invoking the privileges in the face of multiple open records requests, this scenario is not entirely beyond the realm of possibility.

The Fayette circuit court nipped such an absurd possibility in the bud.

Noting that the audit consisted of “systematic analyses of data” and not “confidential communications made for the purposed of facilitating the rendition of professional legal services,” the court determined that “the fact that the audit was ultimately provided to either the university’s General Counsel or [outside counsel] is not sufficient to cloak it with the attorney-client privilege.”

The disputed PowerPoint, the court continued, was presented at a regularly scheduled dinner meeting of the board that was open to the public. No member of the public attended owing to “some intent on the part of the university to mislead the public about the nature of the . . .‘dinner’ meeting, implying that it was merely a social event.”

Nevertheless, the court concluded, “the decision to receive the report in an open meeting reflects a complete lack of. . .an expectation” of confidentiality and “the privilege is absent.”

The court frowned on the university’s attempt to rewrite the open records and meetings laws by dismissing its noncompliance with the statutory requirement that it keep minutes of its public meetings and, if justified, invoke the appropriate exception for closed session discussions, as mere “technicalities.”

Citing a Kentucky Supreme Court opinion in which the state’s highest court declared that the “failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good,” the Fayette circuit court observed that “technical compliance with the Open Meetings Act is exactly what the law demands.”

Sadly, the Fayette circuit court did not adhere to Kentucky Court of Appeals binding legal precedent in resolving the question of access to outside counsel’s billing records.

The Court of Appeals held that not “each and every description of services rendered contained in billing statement prepared by non-government lawyers. . .falls under the attorney-client privilege” and required a “particularized demonstration that each description is privileged.”

Ignoring this precedent, the circuit court concluded that “the total amount paid [to outside counsel] is sufficient” to satisfy the public’s right to know, and placed the invoices under seal in the record. This is unfortunate.

But a reminder to the university, the precedent stands.

The university is no stranger to open records and meetings appeals of adverse rulings, and we suspect it will exhaust all appellate remedies before it finally accepts these well-entrenched principles of Kentucky’s sunshine laws.

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.