A few hours ago, I received this message from University of Kentucky Medical School Professor Davy Jones announcing another victory for open government in a university appeal of an open records decision issued by the Office of the Attorney General in 2015.
The issue presented to the Fayette Circuit Court in Kentucky Medical Services Foundation v. Lachin Hatemi is, perhaps, not as engrossing as the issue presented in Univeristy of Kentuckiy v.The Kernel, but it is every bit as important.
That issue is whether a public agency can avoid the application of the open records and open meetings law by secreting away its records in a "foundation" that is, in reality, established, created, an controlled by the agency seeking to evade accountability.
Its a growing problem. Consider the University of Louisville Foundation.
In a 2016 editorial, the Lexington Herald-Leader described KMSF as a nonprofit corporation created in 1978 for the purpose of collecting physician fees at the UK Medical Center "and us[ing] them to boost doctors' pay as well as to support other worthwhile endeavors at UK."
"Flash forward 40 years," the editorial continues, and "KMSF has grown into a hulking $200 million entity with widespread investments, a very self-contained oversight system, and a penchant for secrecy."
One year earlier, the issue of KMSF's status under the open records law had been presented to the attorney general. And here's a fun fact, "the foundation blew off the AG's request for information" to substantiate its position.
After reviewing all available documentation, the Office of the Attorney General determined that KMSF was a public agency. KMSF appealed.
In late April, the Fayette Circuit Court ruled from the bench in favor of Hatemi. The court affirmed the attorney general's open records decision. There is virtually no doubt that the circuit court opinion will be appealed to the Court of Appeals. And in this case, the costs of the litigation are being borne by a single individual, Lachin Hatemi. Hatemi has been ably represented in the case by Lexington attorney Andre Regard.
Here is Dr. Jones's message, with video links to oral arguments in Judge Kimberly Bunnell's courtroom, and her final ruling in the case:
In the KMSF Open Records case (15-CI-1477) a threshold issue has been whether the Kentucky Medical Services Foundation is a "public agency." The primary question has been whether the Kentucky Medical Services Foundation (KMSF) was created by and is controlled by the University of Kentucky (KRS 61.870(1)(j)). A Fayette Circuit Court hearing was held on April 25, 2019 [] (Judge Kimberly Bunnell).
The video posted here is comprised of three clips from the public video recording of the hearing. There are two clips from during the hearing and the final clip is of the judge's decision from the bench "to uphold the decision of the Attorney General" that KMSF is a public agency under KRS 61.870(1)(j). (re: Ky Attorney General Open Records Decision 15-ORD-205; Jack Conway/Amye Bensenhaver).
https://www.youtube.com/watch?v=cMmsNkf2YQI
15-CI-1477 Kentucky Medical Services Foundation Open Records Case
In the case of Kentucky Medical Services vs. Hatemi (15-CI-1477) a threshold issue has been whether the Kentucky Medical Services Foundation is a "public age...
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Preview YouTube video 15-CI-1477 Kentucky Medical Services Foundation Open Records Case
