Here's one that nearly slipped past us but for the keen eye of Coalition director Jeremy Rogers.

In September 2018, the Kentucky Court of Appeals issued a published opinion in which it affirmed a lower court opinion that the University of Kentucky violated the open records law when it denied the Lexington Herald-Leader's request for audit records relating to the Appalachian Heart Center.

On August 21, 2019, the Kentucky Supreme Court denied UK's request for review, and — unlike other review denials issued on the 21st — the Court did not depublish the Court of Appeals 2018 opinion.

This is a significant opinion that expands on existing law relating to records for which the preliminary documents exceptions and the attorney client privilege are claimed.

The history of the case is amusing (if you can ignore the fact that patients at a clinic affiliated with UK were overpaying for services).

At a *public* Board of Trustees' dinner meeting in May 2016, outside council presented a summary of findings of an audit of the clinic's billing practices. Although no reporters attended, the Herald-Leader learned about the presentation at the *public* trustees' dinner meeting and requested records that included audit documents.

True to form, UK denied the newspaper's request and refused to cooperate with the attorney general's staff when the Herald-Leader appealed to the OAG. The attorney general rejected the university's position that the records were preliminary and held that UK violated the open records law in denying the newspaper's request.

The university subsequently appealed to the circuit court.

The circuit court affirmed the attorney general's decision that the audit records were not preliminary. The court went on to say that the records were not prepared in anticipation of litigation or for the sole purpose of rendering legal advice and therefore were not protected by the attorney-client privilege.

UK then appealed to the Court of Appeals. The court's 2018 opinion, which can be cited as legal precedent, is a treasure trove of useful analysis.

To begin, the court rejected UK's perennial argument that cases construing the preliminary documents exceptions are "not consistent with statutory text." The court emphasized that it is "bound to follow precedents set by the Kentucky Supreme Court."

The court then dismantled UK's argument that the audit records were not "incorporated" in final action, reaffirming the long held view that the preliminary documents' protection is lost if agencies adopt the documents and/or they form the basis for the agency's final action. The documents, that reasoning goes, do not have to be specifically referenced or physically incorporated in the final action.

Turning to the university's invocation of the attorney-client privilege, the court rejected the argument that the audit records were created "for its counsel to give sound and informed legal advice," and that the subject of the audit — compliance with fraud and abuse laws — could "result in litigation."

The court reasoned that the privilege "protects only those disclosures necessary to obtain legal advice which might not have been made absent the privilege *and is triggered only be a client's request for legal, as contrasted with business advice*."

Noting the the audit was not "conducted under the direction of either its inside or outside counsel," and that nothing suggested the audit was intended to be disclosed only to counsel, the court rejected the university's reliance on attorney-client privilege and the work product doctrine.

These records, the court concluded, "were prepared in the course of the university's normal business oversight of the clinic's operation," and not in anticipation of litigation. They consisted of factual matters and not of "an attorney's impressions, conclusions or legal theories."

The inclusion of this analysis in a published opinion resolving an open records dispute is tremendously important. Once again, it strikes a blow in favor of open government, but it does so in a critical factual context never before addressed.

And on August 21, the Supreme Court refused UK's request to review the Court of Appeals' opinion, *and* did *not* depublish the opinion. The case is final.

It can, and you can safely bet, will be cited in future open records litigation.

While we lament the Supreme Court's decision to depublished the Court of Appeals' valuable opinions in the Purdue Pharma and Braidy Industries cases, we are very pleased with the outcome here.

Happy FOIA Friday!