LSU denied public access to emails and documents related to budget cuts for public hospitals and efforts to move more of the LSU health care operations into the private sector.
Shelby McKenzie, a private Baton Rouge lawyer acting as LSU System’s general counsel, said Tuesday that his clients are invoking the “deliberative process privilege” to keep those records secret.
The stance came in response to public records requests made in late September by The Advocate, seeking access to documents written by and received by LSU System President William Jenkins, LSU System Executive Vice President Frank Opelka and LSU Board of Supervisors Chairman Hank Danos concerning the hospital budget cuts and privatization efforts. Opelka oversees health care and medical education redesign for LSU.
“Deliberative process” is a legal term that involves the internal processes that go into making a decision. Supporters of the exemption argue that advisers would not feel as free to give unfettered advice if they knew their thoughts could be made public.
In an email response, Gov. Bobby Jindal’s communications director, Kyle Plotkin, said the Governor’s Office had nothing to do with LSU’s decision to deny public access to the records. “... LSU will continue to work closely with stakeholders and make their own determinations about public records requests,” Plotkin wrote Tuesday.
The LSU Board approved a plan last week that cuts more than $150 million from operations of seven south Louisiana hospitals. The plan calls for nearly 1,500 employee layoffs, reduces beds and medical services, changes some graduate medical education programs and relies heavily on an increased role of the private health care sector.
The proposal comes in response to a reduction in federal Medicaid funding support. The administration claims the current LSU hospital system is unsustainable and changes will improve health care and training of the state’s future physicians.
Over the summer, a different group of LSU officials released records related to the first cuts the LSU Board approved. Those cuts were the initial response because of the loss of federal Medicaid dollars that the Jindal administration ordered LSU to absorb.
At that time, memos and emails that were made public reflected discussions and debates leading up to decisions cutting employees and medical services throughout LSU’s 10-hospital system that includes facilities in Baton Rouge, Lafayette and New Orleans.
The records released over the summer disclosed that former state Department of Health and Hospitals Secretary Alan Levine was involved in board discussions about the direction LSU should go.
Levine, an early appointee of Jindal, is now a top executive of a Florida-based hospital management firm called Health Management Associates, which runs medical school hospitals in other states. Levine said at the time he was serving as an unpaid consultant.
The records that were released during the summer were before LSU System Vice President Fred Cerise, who oversaw hospitals and medical education, and LSU System General Counsel Raymond Lamonica were replaced. Opelka replaced Cerise. McKenzie is contracted while a replacement for Lamonica is sought.
Interim LSU System President Jenkins said the decision to shield records requested in late September is not surprising.
“We are in serious deliberations at the moment,” Jenkins said Tuesday. “I can see some difficulties there until we can come out with definitive propositions.”
Jenkins said behind-the-scenes conversations are occurring with a variety of potential private partners who have shown interest. They include Levine’s company as well as other in-state and out-of-state interests.
“I would say he (Levine) would be interested in business. You would be surprised how many companies across the country are interested in these hospitals,” Jenkins said. Tens of millions of health care dollars are involved.
McKenzie, who said he was out-of-town, replied via email Tuesday about the decision on The Advocate’s requests in late September.
“LSU administrators asserted the deliberative process privilege based upon my recommendation after independent research,” McKenzie wrote. “... A Louisiana appellate court has recognized that the privilege is supported by a wealth of jurisprudence from federal courts and the courts of other states. Further, that court pointed out that the privilege is based on constitutional concerns equally applicable in Louisiana.”
McKenzie wrote that constitutional rights can be asserted even though not expressly recognized in state law. “In my opinion, the assertion of the deliberative process privilege is both legally and logically sound,” he concluded.
McKenzie did not respond to subsequent emails asking why the LSU Board chose to keep the information secret when the law is discretionary and does not forbid LSU officials from choosing to release the documents.
In response to the late September requests, LSU released news releases generated by LSU or the state Department of Health and Hospitals as well as some documents previously released under the earlier public records request. Pages and pages were blacked out.
Lloyd Lunsford, a private Baton Rouge lawyer working for LSU, said LSU officials are taking the position that budget-cutting scenarios and other information submitted by hospital administrators and medical directors to Opelka are off limits to the public. Only the final product, which was approved by the LSU Board last week, can be made public, he said.
“The deliberative process is being invoked by the clients with respect to the various drafts and any communication involving those drafts,” Lunsford said.
Prior to Jindal, governors had a broad exemption from Louisiana’s public records law that stopped most documents in the Governor’s Office from being made public. In 2009, Jindal pushed legislation to shield anything considered part of the “deliberative process.”
The Jindal administration’s education agency is facing a lawsuit over its failure to comply with a public records request seeking documents related to the state’s school voucher program.
The Education Department claimed the governor’s “deliberative process” exemption to deny releasing the records publicly.
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