The Kentucky Supreme Court will hear oral arguments at 10 a.m. on August 18 in Paul Kearney, M.D. v University of Kentucky.
The case arises under Kentucky's Whistleblower Act but implicates the open records law as it relates to the public agency status of Kentucky Medical Services Foundation (KMSF).
The Supreme Court identifies the issue on appeal as "whether a University-employed doctor made a protected disclosure of suspected wrongdoing by a public entity when the doctor: (1) informed the dean of a potential violation of University regulations; (2) told the dean, general counsel, a member of the board of trustees, and the executive vice president of medical affairs that the Kentucky Medical Services Foundation needed to be independently audited; (3) emailed general counsel to allege that the executive vice president of medical affairs was attempting to gain unfettered control of the Foundation's funds; and (4) filed a whistleblower lawsuit repeating his allegations."
WKYT reports:
"Dr. Paul Kearney was fired for what UK considered unprofessional conduct back in 2019. However, Dr. Kearney says his privileges were taken because he was asking too many questions about the Kentucky Medical Services Foundation.
"The foundation bills UK patients. The money goes to all doctors.
"UK claimed that since the foundation is a non-profit and just affiliated with UK, it does not fall under open records requests."
Not quite.
While Kearney's case proceeded through the courts, the Fayette Circuit Court affirmed a Kentucky Attorney General's open records decision determining that KMSF *is* a public agency for open records purposes because it was established and created by the University of Kentucky and is controlled by the university.
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In its brief to the Supreme Court, UK maintains that KMSF is a private entity, apart from the University, and that the University exercises no control over it—undermining, it maintains, Kearney's whistleblower claim.
UK urges the Court to "pass on Dr Kearney's invitation to explore the relationship between KMSF" and UK and the "unrelated Fayette Circuit Court decision treating KMSF as a public agency under Kentucky open records law" because the "ruling related to the Open Records Act only, which has no binding effect on this case."
One thing is clear.
The Fayette Circuit Court ruling affirming the Attorney General's determination that KMSF is a public agency, and its records subject to public inspection, was appealed only on the issue of an award of attorneys' fees. The legal analysis of KMSF's status as a public agency, as defined in the open records law, stands.
However the Supreme Court resolves Dr. Kearney's whistleblower claim, and whatever it decides about KMSF's status as a public entity for purposes of asserting that claim, KMSF's records remain subject to public inspection under the Kentucky Open Records Act.
This is welcomed news.
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 continued, and "KMSF has grown into a hulking $200 million entity with widespread investments, a very self-contained oversight system, and a penchant for secrecy."
Secrecy is no longer an option for KMSF—whose status as a public entity is inextricably tied to Dr. Paul Kearney status as a whistleblower.
