Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the University of Louisville Medical School Practice Association, Inc., d/b/a/ University Physicians Associates, is a public agency within the meaning of KRS 61.870(1)(j), that its records are governed by the provisions of the Open Records Act, KRS 61.870-61.884, and that UPA violated the Act in denying Courier-Journal Frankfort Bureau Chief Tom Loftus' December 30, 2010, request for financial and operational records maintained by the agency. Having concluded that UPA is a public agency under KRS 61.870(1)(j), we do not address the issue of whether it is a public agency under KRS 61.870(1)(h) and (i).
On December 30, Mr. Loftus submitted a written request to Dr. Gerard Rabalais, M.D., chairman of UPA and the Department of Pediatrics at the University of Louisville Medical School. In it, he requested copies of records documenting sources and amounts of UPA's income, UPA's audits, UPA's financial statements, records identifying UPA's employees and their salaries, and records reflecting every expense or payment made by UPA. Mr. Loftus limited his request to the period from January 1, 2005, to December 30, 2010. On January 4, 2011, Dr. Rabalais denied Mr. Loftus' request advising him that UPA "is a private non-profit corporation and does not meet any of the statutory definitions of a 'public agency' set forth at KRS 61.870(1)." He expressly denied that UPA was created or controlled by a public agency.
The Courier-Journal subsequently initiated an appeal to this office challenging UPA's denial of its status as a public agency and of Mr. Loftus' request. The Courier chiefly relied on KRS 61.878(1)(i) 1 and (j) 2 in asserting that:
UPA was established by U of L medical school administrators, department chairs, and professors, and has continued to be controlled by U of L medical school administrators, department chairs, and professors since its inception. Therefore, UPA was 'established, created, and wholly controlled by the University.' Cape Publications, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818, 822 (Ky. 2008). Moreover, these facts further show that UPA and the University of Louisville 'essentially act as one and the same.' Id. UPA's stated goal is to 'advance the charitable and educational purposes' of the University; and UPA solicits, receives, and spends money and other assets on behalf of the University. Id. at 823 . . . . Additionally, U of L has always provided the entirety of UPA's governing body.
Additionally, The Courier asserted that because it is an entity that derives at least 25 percent of its funds expended by it in the Commonwealth from state or local authority funds, UPA is a public agency within the meaning of KRS 61.878(1)(h). 3
Pursuant to 40 KAR 1:030 Section 2, UPA responded to the issues raised in The Courier's appeal, through counsel, 4 on February 8, 2011. Counsel refuted The Courier's claim that UPA is a public agency within the meaning of KRS 61.870(1)(j):
. because it is not a "'board, commission, committee, subcommittee, ad hoc committee, advisory committee, council of agency' at all";
. because it was "established and created by an individual, Dr. Larry Cook, a faculty member of the University of Louisville School of Medicine but not acting in his capacity as such";
. because the physicians who comprise its Board of Directors "merely as a consequence of [their] faculty status," perform their "UPA function in private capacities";
. because "UPA's articles and bylaws contemplate that its board of directors could amend its governing structure such that the purpose of UPA continues to be advanced under a board divorced entirely from any coincidental relationship with the University itself"; and
. because, unlike other entities found to be public agencies "based upon a determination that the entity in question was created to carry out a specific function for the creating body" 5 UPA was not created by the University "to carry out a function defined so specifically" but was created "to serve patients and advance the research, teaching, and clinical interests of the University."
We reject each of these arguments and find that the facts militate in favor of, rather than against, a holding that UPA is a public agency within the meaning of KRS 61.870(1)(j).
It is undisputed that UPA was incorporated in 1993 as a non-profit Kentucky corporation "to provide for the medical care of patients and further the research mission and the teaching of the practice of medicine at the University of Louisville." It is also undisputed that since 1993, most of UPA's officers and directors have been physician administrators and/or professors employed by the University as members of its faculty "who occup[y] position[s] on UPA's board of directors merely as a consequence of [their] faculty status . . . ." Further, it is undisputed that UPA "has," in the words of The Courier-Journal, "an important role in the University of Louisville School of Medicine Professional Practice Plan." UPA describes the University of Louisville School of Medicine Professional Practice Plan, in which it participates, as "one whose component parts, though distinct entities, are by design linked by virtue of their overlapping missions - namely, to support the connected goals of research, teaching, and the provision of clinical services." In light of this description, along with our enhanced understanding of UPA's origins and its role in the Professional Practice Plan, we conclude that sufficient objective evidence exists to establish that the School of Medicine and UPA "act as one and the same" 6 and that UPA is an agency 7 of the School of Medicine that was established and created, and is controlled by, the School of Medicine to advance its mission. Because neither 93-ORD-90 nor 06-ORD-210, upon which UPA heavily relies, directly address the application of KRS 61.870(1)(j) to the subject entities, we find that those decisions are inapposite. 8
We focus on the salient facts presented in this appeal. 9 UPA characterizes itself as "the central link for the Clinical Practices as operated in connection with the University of Louisville School of Medicine" Professional Practice Plan. That Plan was adopted in 1975, revised in 1991 and 1993 (the same year UPA was incorporated), and is "premised upon . . . the participation of medical school faculty members in the various component entities collectively associated." (Emphasis in original.) UPA's incorporator and its original directors were, and are to this day, physician administrators and/or professors at the University's School of Medicine. UPA's stated purpose, reflected in its Articles of Incorporation, is "to further the research mission and teaching of the practice of medicine at the University," and, under the terms of the School of Medicine's Professional Practice Plan, it has provided a steady income stream to the School of Medicine. We agree with The Courier-Journal that the suggestion that these physician administrators and/or professors, each the chair or interim chair of their respective medical school departments, came together of their own accord, and as private actors, to establish and create UPA defies logic. The causal connection between the University of Louisville School of Medicine, the 1993 revision of its Professional Practice Plan, and the 1993 establishment and creation of "the U of L-purposed" UPA is as clear and direct as the causal connection between the University of Louisville Foundation and the University of Louisville recognized in University of Louisville Foundation v. Cape Publications, Id.
The University's continuing control of UPA is equally clear and direct. As noted, UPA's incorporator and its original directors were physician administrators and/or professors employed by the University's School of Medicine. At all times since it was incorporated, UPA's officers and directors have been physician administrators and/or professors in the School of Medicine. UPA's bylaws name 16 "members" consisting of the Dean of the School of Medicine and the chair or interim chair of the 15 departments of the School of Medicine. Each member "shall continue as a member so long as they hold their respective position as Dean of the University of Louisville School of Medicine or department chairperson, or until his or her successor has been appointed and qualified." The Dean and medical school department chairs owe their appointments to the University of Louisville and their membership on UPA's governing body to these University appointments. Through these appointments the University exercises continuing control over UPA.
UPA's Board of Directors, in turn, is comprised of these 16 "members," and, under the terms of its bylaws, the Vice Dean for Clinical Affairs of the School of Medicine, the President of the University Hospital, and three School of Medicine faculty members. Again, the University exerts its control through these directors, the majority of whom serve on an ex officio basis. Unlike UPA, we are not prepared to casually dismiss these facts as "coincidence born of practicality" aimed at "maintain[ing] the continuity of common missions. " UPA's mission and the School of Medicine's mission are one, and UPA and the School of Medicine "act as one and the same."
Cape Publications, Inc. v. University of Louisville Foundation, Inc., at 822. UPA and the School of Medicine, "acting as one and the same[,] amounts to 'control.'" University of Louisville Foundation, Inc. v. Cape Publications, Inc., at 7. Although UPA could, without University approval, amend its governing documents "to alter the composition of the board," in the seventeen years of its existence it has not done so. Here, as in the latter opinion, we "must look to [the] definition [of public agency] as it now applies." Id. at 5, citing
Courier-Journal and Louisville Times Co. v. University of Louisville Board of Trustees, 596 S.W.2d 374 (Ky. App. 1979). Whatever changes may be made to UPA's governing documents in the future, we assess its current status under KRS 61.870(1)(j) and conclude that it is a public agency within the meaning of that section because it was established and created, and is controlled, by the University of Louisville School of Medicine under the terms of its Professional Practice Plan. Because it denied Mr. Loftus' records request, we find that UPA violated the Open Records Act.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Distributed to:
Jon FleischakerJim AdamsDr. George RabalaisBenjamin G. Dusing
Footnotes
Footnotes
1 KRS 61.870(1)(i) defines the term "public agency" as "any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]"
2 KRS 61.870(1)(j) defines the term "public agency" as "any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]"
3 KRS 61.870(1)(h) defines the term "public agency" as "any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds[.]"
4 UPA is represented in this matter by Baker & Hostetler LLP and not by University Counsel, Angela D. Koshewa. Ms. Koshewa so advised this office in a February 3 fax.
5 Citing University of Louisville Foundation, 2003 WL 22748265 (Ky. App.) and 93-ORD-35.
6 University of Louisville Foundation at 822-823.
7 We find unpersuasive UPA's argument that "it is simply not a 'board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency' at all." In concluding that the University of Louisville Foundation was a public agency per KRS 61.870(1)(j), the court did not get hung up on this semantic technicality by rejecting the statute's application because the term "foundation" did not appear in the definitional section. An association, like a foundation, may qualify as an agency of the public agency that established, created, and controls it per KRS 61.870(1)(j) notwithstanding the omission of the particular organizational term by which it is known.
8 The outcome in both 93-ORD-90 and 06-ORD-210 turned on the application of KRS 61.870(1)(h) to the subject entities. We examined only cursorily the role of the School of Medicine in establishing, creating, and exercising continuing control over the entities. Certainly, it was not our intent to establish "the bedrock principle that private entities staffed by medical faculty members are not to be subject to public scrutiny by becoming subject to the requirements of ORA."
9 The Courier-Journal identifies several external indicators suggesting that UPA operates as an agency established, created, and controlled by the University. These include the letterhead on which Dr. Rabalais responded to Mr. Loftus' request (identifying UPA as "a proud member of U of L Health care"), UPA's registered agent (University general counsel Angela D. Koshewa), and UPA's principal offices (the same offices occupied by the School of Medicine's administrative offices).