Request By:
Mr. William J. Morison
University Archives and Records Center
Ekstrom Library
University of Louisville
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General, (502) 564-7600
By letter of November 9, 1989, Kimberly K. Greene, as counsel for the Courier-Journal and Louisville Times Co., has appealed your October 19, 1989, denial of Courier-Journal business writer Ben Z. Hershberg's October 12, 1989, request for access to certain records of the University of Louisville regarding Humana Hospital-University of Louisville.
KRS 61.880(2) provides, in part, for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
FINDINGS IN BRIEF
While the University of Louisville timely responded to a request to inspect certain of its records, it failed to act consistent with Open Records provisions, by denying inspection of a letter, on the ground it was "correspondence with a private individual," when the letter was that of a contractor under a governmental or public contract, regarding issues related to administration of that contract. In general, a contractor loses any character it might have as a "private individual" in connection with its correspondence with a public agency regarding administration of its contract with such agency.
FACTUAL BACKGROUND
By letter of October 12, 1989, Courier-Journal business writer Ben Z. Hershberg requested access to:
. . . copies of all correspondence, so far in 1989 between Humana, Inc. and the University of Louisville on the subject of the payment of a share of pre-tax profits from the operations of Humana Hospital University to the University by Humana.
By letter of October 19, 1989, you denied Mr. Hershberg's request, stating:
The only such record that I have been able to identify is a letter to the University from Humana. The letter constitutes 'correspondence with private individuals'; under KRS 61.878(1)(g), therefore, it can be excluded from inspection.
Ms. Greene's appeal followed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
In the instant case, you promptly responded, in writing, to the requester. In denying inspection, you cited a particular statutory exception (KRS 61.878(1)(g)) as a basis for denial, and provided a brief explanation of how the exception applied to the record withheld. A copy of your denial was promptly forwarded to the Attorney General. All of these actions were consistent with KRS 61.870 to 61.884.
The remaining question is whether the letter involved was properly classified as "correspondence with private individuals," within the meaning of KRS 61.878(1)(g).
KRS 61.878(1)(g) permits public agencies to exclude from public inspection, absent a court order:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
[Emphasis added.]
Pursuant to KRS 61.880(2), the undersigned asked to inspect, and did inspect, and obtain a copy of, the letter in question, at the University of Louisville on November 20, 1989. We are not permitted to disclose a record we have asked to inspect under authority of such provision. We believe, however, that we can identify and discuss the subject and character of a record we have inspected pursuant to KRS 61.880(2), so long as we do not disclose the actual record itself.
The record in question is a two page letter dated April 18, 1989, written upon what we term Humana, Inc., letterhead. It is addressed to Thomas H. Lyons, Esquire, as University Counsel, and signed by Thomas Flynn, who is apparently a vice president and general counsel of Humana, Inc. The letter appears to express certain views of Humana of Virginia, Inc., regarding its contract with the University of Louisville for operation of Humana Hospital-University of Louisville. As such, the letter, despite being written over the signature of an individual human being, is, in our view, a letter of a corporate contractor under governmental contract, writing in regard to such contract. Such view is reinforced by your statement in your response to Mr. Hershberg that the letter in question is ". . . a letter to the University from Humana. " [Emphasis added.] Technical distinctions between "Humana" and "Humana of Virginia, Inc., are inconsequential. The letter is that of a contractor to a public agency, written to a public agency, regarding its contract with such agency.
KRS 446.015 provides, in substance, that words and phrases used in statutes are defined in accordance with common and everyday meanings. We believe "private individuals," in common and everyday meaning, means private human beings. Such phrase, would not, in common and everyday meaning, refer to a corporation. Nonetheless, we address the question here as if the phrase included a corporation.
A contractor to a governmental entity (e.g., the University of Louisville) must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case. Such a contractor, in our view, loses any character of a "private individual," as such phrase is used in KRS 61.878(1)(g), that the contractor might be said to have, in connection with correspondence regarding administration or issues associated with administration of a governmental or public contract. Cf., Gertz v. Robert Welch, 418 U.S. 323, at 344, 94 S. Ct. 2997, at 3009 (1974).
We have carefully considered prior opinions of this office, and points as urged by counsel for the University during a conversation at the University on November 20, 1989, as well as the views of Humana, Inc., Vice President and General Counsel Thomas Flynn, in his November 21, 1989, letter to Attorney General Cowan. We have also considered the views of the Courier-Journal and Louisville Times Company's counsel. While we do not address each contention point by point, we do distinguish OAG 83-79, cited by both University Counsel Thomas Lyons, and Mr. Flynn.
OAG 83-79, and OAG 89-86, regarding correspondence under facts relatively comparable to those in OAG 83-79, involved correspondence from attorneys, upon their letterhead as private attorneys, acting as counsel to a corporation or individual human beings. In neither case could the correspondence involved be termed that of a contractor under a public contract writing regarding administration of such contract.
KRS 61.882(4) establishes, in part, by express legislative direction:
. . . the basic policy of KRS 61.870 to 61.884 that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.870 to 61.884 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
We believe the letter here involved, though signed by an individual human being, is a letter of a contractor under a public contract involving administration of that contract, and that such correspondence may not be properly characterized as "correspondence with a private individual" within the meaning of KRS 61.878(1)(g). Accordingly, we find denial of inspection on such ground was not consistent with KRS 61.870 to 61.884.
You should promptly arrange with Mr. Hershberg for his inspection of the letter in question.
The University of Louisville may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Ms. Kimberly K. Greene, counsel for the Louisville Courier-Journal and Times Company.