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 University of Louisville Physicians, Inc., is a public agency within the meaning of KRS 61.870(1)(j), 1 that its records, scarce though they may be, are governed by the provisions of the Open Records Act, and that ULP violated the Act in denying Courier-Journal Frankfort Bureau Chief Tom Loftus' December 30, 2010, request for ULP's financial and operational records. Although ULP has existed for just over one year, and "is as yet unfunded and without expenditures," 2 it is virtually identical in its origin and the manner of its creation and control to University Physicians Associates, the non-profit Kentucky Corporation that was the subject of 11-ORD-054. In that open records decision, the Attorney General concluded that pursuant to KRS 61.870(1)(j) UPA was a public agency, and its denial of an identical request submitted by Mr. Loftus was a violation of the Open Records Act. 11-ORD-054 is, with the narrow exceptions noted, dispositive of the issue presented in this appeal.
Like UPA, ULP's initial members and directors are University of Louisville School of Medicine faculty members and chairs of clinical departments. It is purposed to "conduct[] and support activities for the benefit of, to perform the functions of, or to carry out the purposes of one or more 'qualified organizations,'" including the University of Louisville School of Medicine and the Clinical Departments. Unlike UPA, ULP has not yet adopted bylaws, and it is unclear whether the School of Medicine will continue to exercise control over it by designating the department chairs and medical school administrators as ex-officio members and directors in its bylaws. For the present, however, the School of Medicine exerts control through the appointed departmental chairs who serve as ULP's directors. In all material respects, ULP mirrors UPA in the manner of its establishment, creation, and control. 3 Here, as in 11-ORD-054, "we are not prepared to casually dismiss these facts as 'coincidence born of practicality,'" and instead find that ULP and the School of Medicine "act as one and the same." Cape Publications, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818, 822 (Ky. 2008). We therefore find that it, like UPA, is a public agency pursuant to KRS 61.870(1)(j), and that its denial of Mr. Loftus' request constituted a violation of 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 FleischakerJames AdamsBenjamin DusingDr. George Rabalais
Footnotes
Footnotes