04-ORD-197 | KOGC

Opinion

Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General

Open Records Decision

The question presented in this appeal is whether Kentucky State University properly relied on KRS 61.878(1)(a) in denying Don Helton's September 9, 2004, request for "the amount that [the University] has annually received in donations from BellSouth for each of the past five years." Relying on KRS 61.878(1), 1 KSU Interim General Counsel Karen A. Powell explained that "[t]he Attorney General has held that a donor's desire for anonymity outweighs the public's interest in disclosure. " In support, Ms. Powell cited 04-ORD-066. Shortly thereafter, Mr. Helton initiated this appeal. For the reasons that follow, we find that the University failed to meet its burden of proof in denying Mr. Helton's request.

In supplemental correspondence directed to this office following commencement of Mr. Helton's appeal, the University amplified on its position asserting that:

Disclosure of the requested information would indicate: (a) whether BellSouth is, in fact, a donor to [the] University; and (b) the amount of contributions, if any, by BellSouth to [the] University. Such disclosure would violate BellSouth's anonymity and possibly limit any donation that BellSouth may choose to donate to the University in the future.

The University again referenced 04-ORD-066 for the proposition that some "persons or organizations prefer that their donations be kept confidential . . . particularly in the case of those making . . . large donations . . . [s]ince if this becomes known . . . they may be contacted and pressured by . . . other organizations seeking donations. " 04-ORD-066, at 7, citing OAG 86-76 at 4. Further, the University asserted, "[t]his ruling has been applied to corporations as well as individuals." In support, the University cited 94-ORD-67. 2

Continuing, the University observed:

There is no doubt that Kentucky State University would be required to give Mr. Helton information about the amount of all donations it received over the five year period in question. The University could even be required to indicate the specific amounts donated. However, we are not required to put the names of the donors with the amounts because to do so would allow information about individual donors to be released. Simply because Mr. Helton has asked for donation information in reverse from the way the issue is normally presented does not mean that the same principles of anonymity do not apply. Providing information about whether BellSouth has donated money, and, if so, the amount of the donation, results in the same violation of BellSouth's privacy interests.

Based on the reasoning articulated by the Kentucky Court of Appeals in University of Louisville Foundation, Inc. v. Cape Publications, Inc., d/b/a/ The Courier Journal, No. 2002-CA-001590-MR (November 21, 2003), we disagree. 3

In University of Louisville Foundation, Inc., the Court of Appeals reviewed the trial court's determination that, as a matter of law, KRS 61.878(1)(a) can never apply to records reflecting charitable donations by corporations and concluded that "[t]his is an issue of fact that needs to be determined on an individual, or case-by-case basis." Id. at 20. Noting that KRS 61.871 provides for strict construction of the exceptions, and that KRS 61.882(3) 4 "puts the burden on the agency to prove the exception," the court opined that "there may be an expectation of personal privacy for some corporations . . . ." Id. (emphasis in original). The court reasoned:

Some gifts may be conditional and disclosure may revoke the gifts. Unless more is known about the individual gifts, we cannot agree with a blanket exclusion of corporations . . . from the personal privacy exception to the Open Records Act.

Id. at 21. On this basis, the court remanded this question to the circuit court "for a determination as to each corporation . . . that made a gift. "

In the appeal before us, the University presents no evidence that donations made to it by BellSouth have been conditioned upon nondisclosure of records identifying the donor or the amount donated, or any other evidence that would support a claim that the corporation's privacy interests outweigh the public's interest in monitoring the University's receipt of corporate donations and in gauging the extent to which these donations are tied to the exercise of corporate influence, including access to board members and administrators, and involvement in the University's bid process and the award of contracts. Simply stated, the University has adduced no proof, beyond a bare allegation, that the protections afforded by KRS 61.878(1)(a) should be extended to BellSouth as a corporate donor, and has therefore failed to meet its burden of proof.

Conversely, Mr. Helton presents persuasive evidence that BellSouth welcomes the publicity associated with its status as a corporate donor. In a reply to the University's supplemental response, he notes that information relating to BellSouth's donations is readily available on the Internet, 5 providing the following examples:

http://www.newmillenniumnewsmag.com/bb-news/bb-news-browse.php3?action=…

BellSouth donated $ 12,500 to Voorhees College as part of the Colleges fundraising efforts with the Tom Joyner Foundation. The donation will be matched through the Foundation.

http://www.bizjournals.com/nashville/stories/1999/04/19daily14.htm]?jst=s_rs_h]

BellSouth Tennessee will give $ 350,000 to Nashville's Meharry Medical College for upgrades in information technology. The gift is part of the Campaign for Meharry, which hopes to raise $ 18 million for the . . .

http://www.auburn.edu/administration/univrel/news/archive/4_01news/04_0…

Auburn University on Thursday announced it is the recipient of a $ 1.05 million contribution from BellSouth Corporation for the Samuel Ginn's College of Engineering's minority engineering program.

http://www.kctcs.edu/newspublications/archnews.htm

From a Kentucky publication of donation's received - WKTC Foundation, Inc. (West Kentucky Technical College): BellSouth.

http://law.nova.edu/ia/pubaffairs/news/july-sept2004/Bellsouth . html

FORT LAUDERDALE, FL - BellSouth Foundation has announced plans to award a $ 45,000 grant to Nova Southeastern University (NSU) to support a series of free workshops for teachers offered through Teacher Universe TM (TU) at the Fischler School of Education and Human Services.

http://www2.ncsu.edu/ncsu/univ_relations/news_services/ press_releases/99_12/355.htm

BellSouth Gives $ 75,000 Grant to NC State University - North Carolina State University's College of Education and Psychology is the recipient of a $ 75,000 grant to fund a collection of Internet-based instructional tools.

http://www.urelations.armstrong.edu/newsevents.html

AASU (Armstrong Atlantic State University) will receive $ 25,000 from the BellSouth Foundation.

http://www.nashville.gov/mc/odinances/prev/bl2002_1275.htm

BellSouth, Nashville Electric Service, Vanderbilt University, and AmSouth Bank have agreed to help underwrite the costs of the "National Night Out Against Crime" and "Celebrating Neighborhoods" conferences through cash donations totaling eleven thousand dollars ($ 11,000).

In Mr. Helton's view, "[t]hese links should be enough to support the fact that BellSouth is not an organization that 'prefer[s] that [its] donations be kept confidential. '" (Emphasis in original.) We agree. The posting of such information on its own website is clearly inconsistent with a desire for anonymity. No other evidence is presented to support this claim. Accordingly, we find that Kentucky State University failed to meet its statutory burden of proof relative to its denial of Mr. Helton's request, and that records containing the information he seeks must be disclosed.

This conclusion does not represent a departure from past decisions of this office. Contrary to the University's apparent belief, this office has never directly addressed the issue of access to the identities of corporations, and amounts donated by corporations, to a public agency, much less expressly extended the protections afforded by KRS 61.878(1)(a) to corporations. See, OAG 86-76; 94-ORD-1; 94-ORD-67; 02-ORD-177; 02-ORD-221; 04-ORD-066. As noted, these decisions, which hold that although the amount of pledges, contributions, or donations must be disclosed, the names and other personal identifiers of individual private donors can properly be withheld under KRS 61.878(1)(a), were premised on the individual private donors' "time-honored right to be left alone . . . ." Zink v. Commonwealth of Kentucky, Department of Workers' Claims, Ky. App., 902 S.W.2d 825, 829 (1994). The appeal before us does not involve individual private donors, and nothing in the record on appeal indicates that the corporate donor, BellSouth, desires "to be left alone." 6 Consistent with the requirement that the issue of access to corporate donor identities and amounts donated be analyzed on a case-by-case basis set forth in Cape Publications, Inc., above, we find that BellSouth's privacy interest, if any, are clearly outweighed by the public's interest in disclosure and that records containing the information Mr. Helton seeks do not qualify for exclusion under KRS 61.878(1)(a).

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.

Don Helton113 Dogwood LanePewee Valley, KY 40056

Karen PowellInterim General CounselKentucky State University400 East Main StreetFrankfort, KY 40601

William PennellKentucky State University400 East Main StreetFrankfort, KY 40601

Footnotes

Footnotes

1 No additional statutory reference appears in KSU's response, but the letter's content suggests that the agency intended to rely on KRS 61.878(1)(a) authorizing public agencies to withhold "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of privacy. "