University of Louisville v. Sharp
2013 Ky. App. LEXIS 161
Ky. Ct. App.2013Background
- In 2011 William Sharp, on behalf of the ACLU, requested all materials related to a pending merger involving the University of Louisville Hospital and other hospital systems.
- The University’s Open Records Officer identified 13 responsive emails (some with attachments) and withheld them as preliminary under KRS 61.878(1)(i) and (j); three were also withheld as attorney-client privileged.
- The University provided an itemized list; Sharp appealed to the Kentucky Office of the Attorney General (OAG).
- The OAG reviewed the emails and concluded nine were properly withheld as preliminary; four (three draft agendas and one draft invitation) were ordered disclosed because they were incorporated into a communications meeting that actually occurred, thus becoming "final agency action," except for small attorney-client redactions.
- The University appealed the OAG opinion to circuit court and moved for summary judgment; the circuit court denied the motion and affirmed the OAG order requiring disclosure of the four emails. The University appealed to the Court of Appeals.
- The Court of Appeals reversed, holding the four emails remained preliminary and exempt because the communications concerned planning for a meeting that did not resolve the ultimate issue (the merger).
Issues
| Issue | Plaintiff's Argument (Sharp) | Defendant's Argument (University) | Held |
|---|---|---|---|
| Whether draft emails/agenda items lose preliminary status because they were incorporated into a meeting that occurred | The four draft emails were adopted into final agency action when the communications meeting occurred and thus must be disclosed | The drafts remain preliminary opinions about meeting structure and subject matter and stay exempt under KRS 61.878(1)(i) & (j) | Held for University: meeting did not decide the ultimate issue (the merger); drafts remained preliminary and exempt |
| Whether the remaining nine emails discussing merger strategy are exempt as preliminary | Those nine are substantive and should be disclosed (OAG’s partial ruling favored disclosure of some materials) | The nine are preliminary discussions about an unresolved merger and exempt | Held for University: those emails properly withheld as preliminary (OAG and circuit court had agreed) |
| Appropriate scope of disclosure during multi-step decision processes | The public is entitled to communications once incorporated into an agency action | Requiring disclosure of every communication about meetings would force piecemeal disclosure of iterative decision-making | Held for University: piecemeal disclosure is not required; preliminary materials remain exempt until final agency action resolving the ultimate issue |
Key Cases Cited
- City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky. Ct. App.) (preliminary notes adopted into final agency action lose exemption)
- Beckham v. Bd. of Educ., 873 S.W.2d 575 (Ky.) (legislative intent recognizes exclusions to public records to protect governmental confidentiality)
- Ky. State Bd. Med. Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953 (Ky. Ct. App.) (investigatory records exempt until final board determination)
- Palmer v. Driggers, 60 S.W.3d 591 (Ky. Ct. App.) (resignation that ends proceedings converts prior records to non-preliminary)
- Courier-Journal v. Jones, 895 S.W.2d 6 (Ky. Ct. App.) (scheduling/calendar materials may remain exempt even if meetings occurred)