Request By:
Dr. Jack C. Blanton
Vice Chancellor for Administration
and Official Records Custodian
110 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Richard C. Carroll, Assistant Attorney General
James L. Thomerson, Esq., on behalf of his client, The Lexington Herald-Leader Company, has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of the request of Mr. David Green for access to various documents in the University's possession.
Mr. Green, City Editor of the newspaper, in a letter to you dated May 16, 1988, asked for access to various documents including depositions taken since April 1, 1988, relative to the investigation of the basketball program, expense and travel records of specifically named persons and:
"All correspondence with the National Collegiate Athletic Association, since and including May 10, 1988. This request includes correspondence from both the NCAA and the university."
You responded to Mr. Green in a letter dated May 19, 1988. He was advised that there are no such depositions and that copies of the pertinent expense and travel records would be furnished. In regard to the requested correspondence you stated as follows:
"To the extent such documents exist and are known to us, copies are hereby furnished. I am withholding one document on the following grounds: (a) the document is preliminary in nature; and (b) the document is correspondence between the NCAA and a private individual."
In his letter of appeal to this office Mr. Thomerson maintains that the reasons you set forth in support of your denial cannot be applied to the particular document withheld. He said that you must be relying upon the exceptions set forth in KRS 61.878(1)(g) and (h) and they apply to agency documents and correspondence between the agency and a private party.
Assistant Attorney General Thomas Emerson talked by telephone with a representative of your office on June 8, 1988, and was advised that the one document withheld from inspection is a copy of a four page letter from Mr. Charles Smrt, Director of Enforcement for the NCAA, to Attorney Joe B. Campbell of Bowling Green, legal counsel to Assistant Basketball coach Casey. Pursuant to KRS 61.880(2), a copy of said letter was then obtained and reviewed by the undersigned in order to prepare this Opinion.
OPINION OF THE ATTORNEY GENERAL
KRS 61.870(2) defines the term "public record" as follows:
"'public record' means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. 'Public record' shall not include any records owned by a private person or corporation that are not related to functions, activities, programs or operations funded by state or local authority;"
While this office does not know why the NCAA sent a copy of its letter to Attorney Joe B. Campbell to the University, the fact remains that a copy of the letter was sent and is in the University's possession. The copy of the letter in the University's possession is, therefore, a public record, subject to public inspection, unless one of the exceptions to public inspections can be properly invoked.
Counsel for the appealing party maintains that the exceptions to inspection set forth in KRS 61.878(1)(g) and (h) are not applicable because the document in question is not correspondence between the University and a private party and it is not a document prepared by anyone connected with the University.
This office agrees that the exception to public inspection set forth in KRS 61.878(1)(g) cannot be utilized because the document is not correspondence with a private individual. It is not correspondence between the University and a private party. In addition, KRS 61.878(1)(h) is not applicable as the document involved is not a preliminary memorandum to or from University personnel in which opinions are expressed or policies formulated or recommended.
Among the other public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those described in KRS 61.878(1)(a) as, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
The leading case in Kentucky which has interpreted this exemption provision is Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981).
That case involved an appeal from a Fayette Circuit Court Order which determined that it was not an unwarranted invasion of privacy under KRS 61.878(1)(a) to allow the Human Rights Commission to inspect the personnel files of various employees of the school system in regards to a sex discrimination claim filed by a female school employee.
In its decision, the Court of Appeals noted that since 1909 the doctrine of right to privacy has been recognized in the state of Kentucky and defined as:
"It is based on the right of an individual to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which it is not necessarily concerned. However, the right is not absolute. The rule defining the extent of the right is based on the premise that the standard by which the act is judged is that of a reasonable man. Since there is no hard and fast definition of the right, each case must turn on its own facts. Such a rule necessitates a balancing of the interests of the two parties in litigation, as well as those of the public." (Citations omitted). Id. at 110.
The court then reviewed the principle applied by the federal courts regarding a right to privacy claim. The federal standard, according to the Court of Appeals is:
". . . that the interests of the individual must be balanced against those of the public and its so-called 'right to be informed' when dealing with the issue of whether disclosure would be a clearly unwarranted invasion of privacy. This balance should be tilted towards disclosure. " Id. at 110-111.
However, the Kentucky court specifically rejected the application of the federal approach which favors disclosure when it held:
"In order that there be no mistake about our view, we should point out that we do not subscribe to the tilting towards disclosure doctrine but rather apply the test of balancing the interests of the parties as well as those of the public measured by the standard of the reasonable man. " Id. at 111.
The court then went into a brief review of the documents at issue in the case and determined that some of the information found in the requested material should not be disclosed.
As previously noted, at issue in this opinion is a letter from the NCAA to the attorney for Dwayne Casey. A review of said letter revealed that it contained general information regarding the procedures followed by the NCAA when investigating allegations of possible violations of its rules. In addition the letter advised Mr. Casey's attorney that he could review the information obtained from his client regarding the alleged violation of NCAA rules.
The material in the letter at issue pales in comparison to the information contained in the personnel files discussed in the Board of Education v. Lexington-Fayette Urban County case. The letter contains very general information whereas the material mentioned in the Court of Appeals decision contained references to sex offenses committed by strangers on a member of a school employee's family, medical records and references to criminal investigations.
It is clear that hereinabove-referred-to information found in the Board of Education v. Lexington-Fayette Urban County decision was very personal in nature and totally irrelevant in a sexual discrimination investigation and therefore had no place in being revealed since no public interest would have been served by such discosure.
In contrast, a reasoable man after reviewing the contents of the letter at issue would come to the conclusion that the right of privacy in regards to said letter fails to outweigh the right of the public to be informed.
It is, therefore, the opinion of the Attorney General that your refusal to release a copy of the correspondence between Mr. Charles Smrt of the NCAA and Mr. Joe Campbell cannot be supported by relying upon KRS 61.878(1) (a) (g) or (h). The letter should, therefore, be disclosed.
As required by statute, a copy of this opinion is being sent to counsel for the appealing party, Hon. James L. Thomerson.