Bragging rights go to the University of Kentucky for today's victory on the football field but also to the newspaper that covered the victory, the Lexington Herald-Leader.

The newspaper recently prevailed over the University of Kentucky in the courts with little to no celebration.

On August 21, the Kentucky Supreme Court denied three requests for review of published Court of Appeals' opinions resolving access to public records disputes in favor of the public's right to know.

The Court denied Purdue Pharma's request for review of a published opinion of the Court of Appeals recognizing both the Boston Globe/STAT's and the public's right to records compiled by the Kentucky attorney general in a case against the manufacturer of OxyContin settled in 2015. Score!

https://www.facebook.com/419650175248377/posts/503668983513162?sfns=mo

The Court also denied the Cabinet for Economic Development's request for review of a published opinion of the Court of Appeals recognizing both the Courier Journal's and the public's right to the names of shareholders in Braidy Industries. Score!!

https://www.facebook.com/419650175248377/posts/504460970100630?sfns=mo

Finally, the Court denied the University of Kentucky's request for review of a published opinion of the Court of Appeals recognizing both the Herald-Leader's and the public's right to records of an audit of improper billing practices by an affiliated medical clinic in Hazard. Score!!!

https://www.facebook.com/419650175248377/posts/505973993282661?sfns=mo

The Court will review none of these cases, and each is now final. But the Court "depublished" the Purdue Pharma and Cabinet for Economic Development cases. Whatever it's reason for doing so, the Court's decision to depublish these two cases means that they cannot be cited to a court as legal precedent in future cases except under limited circumstances. Penalty?

https://cases.justia.com/kentucky/court-of-appeals/2019-2018-ca-001131-…

As one who welcomes well-reasoned appellate opinions, I believe this is unfortunate. It is especially unfortunate in the Purdue Pharma case. The Court of Appeals' exhaustive analysis of the public's right of access to records sealed by agreement of the parties would have proven an invaluable weapon in the access advocate's arsenal in future disputes.

http://opinions.kycourts.net/coa/2016-CA-000710.pdf

But the Court did not depublish University of Kentucky v. Lexington Herald-Leader, and this is great cause for celebration by the open government community. The court's analysis in that case will be regularly cited to refute agency attempts to broadly construe the preliminary documents exceptions — long considered the most abused exceptions — and the attorney-client privilege/work product doctrine — rising stars in the galaxy of overused exceptions.

http://opinions.kycourts.net/COA/2017-CA-001423.pdf

The final victory is the Herald-Leader's and ours.

In a nutshell, the UK-HL case:

1) rejects the public agency argument that the language of the preliminary documents exceptions does not support existing caselaw:

2) rejects the public agency argument that a preliminary document must be incorporated by reference or physically attached to final agency action to lose protection under the exceptions;

3) establishes that records generated in the normal course of business do not qualify as attorney-client privileged on the vague pretext that they were created for agency counsel to provide legal advice or in anticipation of the remote threat of litigation; and

4) establishes that records prepared in the normal course of business, and consisting of factual matters rather than an "attorney's impressions, conclusions, or legal theories" do not qualify as protected work product.

It bears repeating on this slow open records news day that the Court of Appeals broadened the public's rights under the open records law by strictly construing these overused exceptions to public inspection.

I know a good case when I see one. This is a very good case.

Congratulation to the Herald-Leader on its victory in the courts and to UK on the football field. Sorry (not sorry) UK lost in the courts.

And apologies for the bait and switch article.

Just wanted to be sure I had your attention.