University of Kentucky sues WUKY reporter over open records request

By Mike Janssen

The University of Kentucky has sued a reporter at its public radio station, WUKY in Lexington, in an attempt to guard information she had requested about surgical practices at its pediatric hospital.

By filing the complaint, UK is challenging the state’s attorney general, who in March endorsed reporter Brenna Angel’s request for documents. UK declined the AG’s request as well, citing state and federal privacy laws.

The dispute began in December 2012, when Angel made an Open Records Request to the university regarding the cardiothoracic surgery program at Kentucky Children’s Hospital in Lexington. The program has been suspended pending an internal review, according to local media reports. (Read Angel’s story for WUKY about the review.)

Three of Angel’s questions focused on Dr. Mark Plunkett, a surgeon who had performed the operations. She asked how many surgeries Plunkett had conducted from 2010 to 2012, the date of his last surgery and payments received for the surgeries.

Angel also asked for the mortality rates related to the operations and documentation from an evaluation of the surgery program.

In response, the university disclosed to Angel the number of surgeries and the payments Plunkett received. But it declined to give the mortality rate, the date of Plunkett’s last surgery or details about the evaluation, invoking state law, the federal Health Insurance Portability and Accountability Act and a state Supreme Court decision.

Angel then went to the state attorney general’s office to appeal the university’s refusal, and the AG’s office asked the university to submit to it the documents Angel had requested. The AG’s office wrote that it would not share the documents publicly.

The university again declined, and in March the attorney general declared UK in violation of the Kentucky Open Records Act. It said that the university failed to meet the necessary burden of proof in declining to release the requested information.

“This office has repeatedly ruled that HIPAA does not preempt the Kentucky Open Records Act,” the office wrote.

UK filed its complaint against Angel in Fayette County Circuit Court April 25. Angel had yet to answer as of Current’s deadline.

A Lexington newspaper, the Herald-Leader, also filed a similar open records request, which was likewise denied by the university. A newspaper editorial May 1 criticized the university’s actions. “For UK, a public institution, to so thoroughly disregard years of legal precedent is disturbing,” the editorial said. “If UK is trying to manage its image, it has made a huge blunder.”

Three journalism organizations — Public Radio News Directors Inc., the Radio Television Digital News Association and the Society of Professional Journalists — sent letters to the university supporting Angel’s request and requesting that the university release the information.

“RTDNA understands the legal limitations associated with public inspection of healthcare records,” wrote Mike Cavender, RTDNA executive director. “Accordingly, we would ask the records be made available with personal information redacted, so as to comply with HIPAA and other applicable federal and/or state regulations.”

“Kentucky taxpayers should be offended that a public institution supported by their dollars chooses to hide behind a fallacious reading of HIPAA rules rather than deal with its constituency in a truthful and forthright manner,” said Sonny Albarado, SPJ national president, in a press release.

It’s possible that by the time the dispute is resolved, Angel will no longer be covering the story for WUKY. The reporter decided last week to take a communications job with the Lexington mayor’s office. She will leave WUKY at the end of May. Angel’s decision to resign was unrelated to the legal dispute, she told Current, and the lawsuit will proceed.

“We intend to follow up on all the stories that Brenna was working on,” said Tom Godell, WUKY’s g.m. The station is considering assigning a part-time reporter to cover the hospital’s cardiothoracic surgical program.

But because WUKY is not named in the university’s complaint against Angel, it has no other role to play in the case.

“It’s a very unusual situation — it’s not one I’ve ever faced before,” Godell said.

Questions, comments, tips? mike@mikejanssen.net
A shorter version of this article was published in Current, May 13, 2013.

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