Request By:
Dewey R. Wotring
Elsie Carter
Graham Whatley
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of LaGrange violated the Open Records Act in the disposition of Dewey R. Wotring's September 25, 2008, request for records relating to a one hundred thousand dollar donation to the City of LaGrange from an "anonymous donor. " Specifically, Mr. Wotring requested records identifying the donor, the project to which the money was donated, the deposit ticket reflecting the deposit of the donation, and a copy of the check. In denying Mr. Wotring's request, 1 the city distinguished
Cape Publications, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818 (Ky. 2008), upon which he had relied, explaining:
[T]he decision of the Court in its opinion did not require the release of that type of information for gifts received prior to its ruling. The Court's ruling was entered on or about August 21, 2008. Therefore, the City is not legally required under this ruling to release that information . . . for donations received prior to August, 2008 for which the City promised anonymity in exchange for the receipt of the gift.
For the reasons that follow, we find that the city's position is unpersuasive and that it violated the Open Records Act in denying Mr. Wotring's request.
On October 24, 2008, Mr. Wotring initiated this appeal, questioning the city's position, but erroneously referencing his "request for the name of an 'anonymous' donor of $ 100,000 to Oldham County . . . ." (Emphasis added.) All subsequent references in his letter of appeal are to the City of LaGrange as was his September 25 request. Nevertheless, in supplemental correspondence directed to this office following commencement of the appeal, the city focused on the single error appearing in Mr. Wotring's letter of appeal, denying that it had refused to "provid [e] him the name of an anonymous donor to Oldham County," and explaining that it has "no control over donations to the county." The city requested "clarification from Mr. Wotring before . . . provid [ing] an answer" and "either a stay of the twenty (20) days pending his response or in the alternative that this letter contains [the city's] response to his appeal." By letter directed to the city dated December 17, 2008, Mr. Wotring acknowledged his error, and stated that his letter "should have referenced the name of an 'anonymous donor of $ 100,000 to the City of LaGrange, Ky. in early 2008.'" The record on appeal contains no further communication from the City of LaGrange.
Ignoring, for a moment, the fact that Mr. Wotring acknowledged and corrected his error, we find nothing in the Open Records Act that supports a "stay of the twenty days" owing to an error in the letter of appeal. KRS 61.880(2) requires a complaining party to "forward to the Attorney General a copy of the written request and a copy of the written response denying inspection . . . ." See also 40 KAR 1:030 Section 1. The "letter of appeal" in which Mr. Wotring's error appeared, is not a statutorily required document. Given the fact that all remaining references in his request and appeal were to the City of LaGrange, there could have been no reasonable doubt as to the records sought in the minds of city officials.
We therefore turn to the argument the city originally advanced in support of its denial. That argument was premised on its interpretation of
Cape Publications, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818 (Ky. 2008). In 08-ORD-248, a copy of which is attached hereto and incorporated by reference, this office overruled 08-ORD-103, and the open records decisions that preceded it, affirming the right of a public agency to withhold donor identity. The decision arose from a dispute involving Mr. Wotring and the Oldham County Fiscal Court relative to his request for records identifying the anonymous donor of a $ 100,000 donation to the fiscal court. At page 3 of 08-ORD-248, we examined Cape Publications v. University of Louisville Foundation , observing:
In that opinion, the Supreme Court declared that the names of donors to a public agency "are subject to the disclosure requirement of KRS 61.871." Id. at 824. In so holding, the Court reasoned:
Id. at 823. Noting that "the public's interest is particularly piqued by large donations from anonymous donors, and that a legitimate question of influence is raised by such circumstances," the court recognized a single narrow exception for anonymous donors who "believed at the time of the gift, that the donation was being made to a private entity, " [footnote omitted] and placed future donors "on notice that their gifts are being made to a public institution and, therefore, are subject to disclosure regardless of any requests for anonymity. " Id. at 824.
Nevertheless, we "refrain[ed] from further comment . . . and defer[red] jurisdiction to the [Oldham County Circuit Court]" in which the issue of access to the identity of an anonymous donor was pending. No evidence has been presented to this office that the issue of access to the identity of the anonymous donor of $ 100,000 to the City of LaGrange is currently pending in the Oldham County Circuit, and we therefore proceed to an adjudication of the issue.
While the City of LaGrange may have offered the donor assurances of confidentiality at the time of his or her donation, the Kentucky Supreme Court did not recognize an exception for these donors who were "promised anonymity" at the time of their donations, but only for those donors who believed that their "donation was being made to a private entity. " It is inconceivable that the donor of $ 100,000 to the City of LaGrange believed he or she was making a donation to a private entity.
LaGrange is a city of the fourth class (KRS 81.010(4)), incorporated under the provisions of the Kentucky Revised Statutes (KRS 81.050), and may "exercise any power and perform any function within its boundaries . . . that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute." KRS 82.082(1). Since its enactment, the Kentucky Open Records Act has defined "[e]very county and city governing body, council, school district board, special district board, and municipal corporation" as a public agency. KRS 61.870(1)(d). Because the donor whose identity is at issue in this appeal could not have reasonably believed that the City of LaGrange was a private entity when he or she made his or her request, we find that the donor does not fall within the single, narrow exception recognized in Cape Publications v. University of Louisville Foundation , an exception that was premised solely on the fact that, at the time their donations were made, the status of the Foundation as a public agency was not clearly established, 2 and "it was certainly reasonable for each donor to believe that the donation was being made to a private entity. " Id. at 823. The desire for anonymity of the donor at issue in this appeal cannot be accorded the same deference.
We therefore conclude that the City of LaGrange erroneously relied on Cape Publications, Inc. v. University of Louisville Foundation, Inc ., in denying Mr. Wotring's request. Although the city cited no exception to the Open Records Act authorizing nondisclosure of any of the records identified in the request, we believe that those portions of the donor's check which identify his or her account number may properly be redacted pursuant to KRS 61.878(1)(a) inasmuch as his or her privacy interest in the account number clearly outweighs any open records related public interest in disclosure.
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.
Footnotes
Footnotes
1 On September 29, 2008, the city notified Mr. Wotring that it did not currently employ a city attorney, but that a city attorney was expected to be hired within two weeks. Consequently, the city indicated that it was "unable to comply with [his] request." The city's final response to Mr. Wotring's request was not issued until October 21, 2008. Although KRS 61.872(5) permits an agency to extend the three day deadline for response if the requested records are "in active use, in storage or not otherwise available," the statute does not permit an agency to extend the deadline while it secures the services of an attorney. The city should bear this in mind in responding to future open records requests.
2 The status of the University of Louisville Foundation, Inc., as a public agency was unclear until November 2003 when the Kentucky Court of Appeals issued an unpublished opinion in which it determined that "the Foundation is a public agency under KRS 61.870(1)(j)." University of Louisville, Inc. v. Cape Publications, Inc ., WL 22748265 (Ky. App. November 21, 2003).