Opinion
Opinion By: Jack Conway, Attorney General; Tad Thomas, Assistant Deputy Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the University of Louisville Foundation violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Courier-Journal reporter Nancy Rodriguez's February 10, 2010, request for records relating to donations to the Foundation, records relating to Foundation employees who receive compensation from other entities affiliated with the University of Louisville, and records relating to Foundation expenses. Additionally, we find that the Foundation subverted the intent of the Act, short of denial of inspection and within the meaning of KRS 61.880(4), by failing to afford Ms. Rodriguez timely access to the records identified in her requests. We find that 09-ORD-139, a copy of which is attached hereto and incorporated by reference, is dispositive of the issues on appeal.
On March 30, 2010, Foundation counsel Kennedy Helm III acknowledged that his client's "formal responses were not delivered within the three day statutory period (although there have been email communications between Ms. Rodriguez and . . . the Foundation since the requests were received); and that [his client] has not yet provided all of the records requested." He described staffing issues that "created a 'perfect storm' that led to this delay by the Foundation," but recognized that "this explanation does not constitute a legal defense under the Open Records Act. "
In 09-ORD-139 this office examined a small local agency's obligations under the Open Records Act, concluding that the agency "subverted the intent of the Act by failing to afford [the requester] timely access to the requested records." 09-ORD-139, p. 1. There, the agency issued a timely written response to the requester but asserted that it was only obligated to notify her whether it would honor her request within the three business day time frame. In subsequent correspondence, the agency described the staffing issues that occasioned its delay in producing the records. At page 6 of 09-ORD-139, we declared that it was "incumbent on the [agency] to make proper provision for the uninterrupted processing of open records requests even in the face of staff shortages . . . ."
The holding applies with equal force to the University of Louisville Foundation in the appeal before us. The Foundation's failure to issue a timely written response to Ms. Rodriguez's requests constituted a violation of KRS 61.880(1). Its failure to afford her timely access to the records identified in her requests constituted subversion of the intent of the Act within the meaning of KRS 61.880(4).
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.
Jon L. FleischakerKathleen SmithT. Kennedy Helm III