Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant 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 although the University of Kentucky properly relied on KRS 61.878(1)(a) in denying Mark Donham's May 7, 2010, request for "a list of the advisory board that . . . chose the scenarios that were presented" at a community focus group held on May 4, 2010, in Paducah, Kentucky, as part of a research project funded by the U.S. Department of Education to "develop[] a vision of possible future uses of the Paducah Gaseous Diffusion Plant," the University erred in withholding the "'visualizations' from the scenarios" that were disseminated during the May 4 "visioning session" on the basis of KRS 61.878(1) (b), (i), (j) and (k). Because Mr. Donham did not provide this office with a copy of the University's response to his May 17, 2010, request for "all recordings of the evening," we are foreclosed from evaluating the propriety of the University's denial of that portion of his appeal. 40 KAR 1:030 Section 1. 1
Relying on KRS 61.878(1)(a), (b), (i), and (j), Official Records Custodian Frank Butler denied Mr. Donham's request by letter dated May 17, 2010. 2 Mr. Butler advised:
[T]he visioning session that you attended was not a public meeting but was part of a research project, and was attended by invitation only. The express purpose of the visioning session was to develop information for the on-going research project.
He noted that the "research subject consent read to the group," a copy of which was also provided at the session, assured participants that their identities and statements would remain confidential. Although Mr. Butler did not invoke KRS 61.878(1)(k), he asserted that "[h]uman subject research and confidentiality is governed by 45 CFR subpart 46."
With respect to the PGDP Future Use Vision Project visualizations, Mr. Butler invoked KRS 61.878(1)(i) and (j), explaining that they "are not final but preliminary (the very reason you were invited to provide feedback), as a part of an ongoing research project, and as such any records relating thereto (including but not limited to the visualizations) are exempt from disclosure . . . ." He indicated that "[t]he visualizations for the project are anticipated to be complete in the fall of 2010" and agreed to make them available to Mr. Donham at that time.
In supplemental correspondence directed to this office, UK provided additional background information. The University advised:
At the focus group, Mr. Donham received one visualization (a computer rendering showing the possible use of the PGDP site as a nuclear power plant) that he found objectionable. At the focus group, Mr. Donham became upset and insisted that he be allowed to take the rendering with him. After being told that he could not remove the research material, the conversation escalated to the point that he was advised that the police would be called.
Mr. Donham thereafter made a written request for copies of the visualizations presented at the focus group and the names of the individuals who participated in the focus group that "chose the visualizations. " In support of its denial of these requests, the University emphasized that "public access to on-going research can cause the loss of patent protection for valuable inventions; loss of ability to publish results; and loss of ability to apply for and obtain grant funding," and undermine "the trust of research subjects." The University contested Mr. Donham's characterization of the visioning session as a public meeting, noting that participation was by invitation only. 3
Turning to the statutory arguments supporting nondisclosure of the names of participants and session comments, 4 the University again invoked KRS 61.878(1)(a), as construed in
Kentucky Board of Examiners of Psychologists v. Courier-Journal, 826 S.W.2d 324 (Ky. 1992), asserting the "privacy interests of individual citizens who consented to participate in a research project pursuant to express promises of confidentiality contained in human subject consent documents." The University went to great lengths to describe the participants' limited advisory role in "identify[ing] potential challenges with the initial draft of the focus group protocol, eliminating duplicative, excessive, and/or potential confusing details, and gaining a greater understanding of the issues related to the development and diversity of potential scenarios for use in subsequent focus groups," and thereafter invoked "the terms of informed consent" found at 45 CFR 46, citing KRS 61.878(1)(k) for the proposition that it properly withheld the participants' names as "information the disclosure of which is prohibited by federal law or regulation. " Additionally, the University relied on KRS 61.878(1)(b), authorizing nondisclosure of "[r]ecords confidentially disclosed to an agency and compiled and maintained for scientific research" to bolster its refusal to release "recorded comments."
In defending its denial of Mr. Donham's request for the scenarios or visualizations, the University recited the language of KRS 61.878(1)(i) and (j) and explained:
Mr. Donham has been repeatedly advised, in writing, that he has seen preliminary, hypothetical sketches developed as a part of a research project, as he himself appears to admit in his email to Dr. Lake-Bullock. He has also been advised that he can have all of the scenarios, once the research is complete and the materials are ready for public dissemination (for further public comment and input). The University is confident that there can be no dispute that the project is on-going and no "final action" taken, clearly making the materials developed by the researchers exempt under the foregoing sections.
The University provided the Attorney General with a copy of Mr. Donham's May 5, 2010, blog entry, describing his participation in the May 4 visioning session attended by "one other person from the 'public,' who turned out . . . to be . . . one of the [Department of Energy] cleanup contractors," and "7 or 8 government people . . . ." He noted that "halfway through, a young man came in, identified himself as a student, and started to participate." Mr. Donham explained that a representative of the University, Anna Hoover, presented Mr. Donham with a stack of 9" x 12" envelopes, each of which contained three scenarios for future use of the site, directed him to randomly choose one and comment on it. Continuing, Mr. Donham observed:
I was taken aback because the scenario that I had chosen was "scenario 2" which was to build a nuclear power plant there. The graphics had cute little cooling towers, trees, hills, even the large landfill that DOE wants to build when they demolish the site. When they asked for my reason, I basically said that I was a little surprised and shocked to see such a scenario actually put into writing and passed out at a public meeting, because to the best of my knowledge there hadn't been any kind of environmental studies, public hearings, or anything like that. The researchers assured me that this was not a real proposal, just there to gauge my response.
At the conclusion of the meeting, Mr. Donham stated, he gathered the materials distributed during the session, including the envelope containing the scenarios, and attempted to leave. His exit was impeded, he advised, by a University employee who demanded the return of the envelope. Mr. Donham agreed that the dispute escalated to a point at which University representatives threatened to, or actually, called the police. A compromise was ultimately reached whereby Mr. Donham returned the envelope with the apparent understanding that the scenarios would be mailed to him. The University does not dispute the blog entry except to suggest that he was not "promised" the records at the meeting.
Our review of the record on appeal confirms Mr. Donham's entitlement to copies of the scenarios, but not to "the names of the advisory board that . . . chose the scenarios that were presented" if, in fact, the advisory board members were individual research participants who were given assurances that their names would not be disclosed in the "human subjects consent documents" with which they were provided before and during the sessions. The University postulated that "what Mr. Donham wants is the list of subjects who attended the first, pilot focus group, and assisted the researchers in focusing their presentation," which has also been described as "advisory," "stakeholders, " "consultation," "pilot focus group," and "other generic descriptions." The University contrasted this group with "the separate and unrelated Department of Energy-funded Community Advisory Board which is mandated by CERCLA statutes," and whose members are identified on the Board's website. 5 Assuming this is correct, we find that because the individuals who participated in the pilot focus group were given assurances of confidentiality, both orally and in writing, they could reasonably expect that their identities would not be disclosed. Accordingly, we find that they had a strongly substantiated privacy interest in the nondisclosure of their names. 6 The competing open records related public interest in disclosure, which focuses on the public's right to monitor the Kentucky Research Consortium for Energy and Research (now "the Environment") in the discharge of its duty to conduct "research on environmental assessment and cleanup at the Paducah Gaseous Diffusion Plant," 7 is also substantial. With regard to participants' names, disclosure would advance the public's right to know if KRCEE selected a truly representative group to engage in visualization. Because these participants were given assurances of confidentiality, we find that their privacy interests outweigh the public's interest in disclosure, albeit marginally given the substantial public interest in insuring that all "stakeholders" are adequately represented in the focus groups. As noted, we make no decision on the University's denial of Mr. Donham's request for the participants' comments, and/or recordings thereof, inasmuch as he failed to submit the requisite document under KRS 61.880(2), and we are precluded from addressing this matter. (40 KAR 1:030 Section 1.)
No such disclaimers of confidentiality or restrictions on use were attached to the material disseminated to Mr. Donham and the two other individuals, one invited and one an apparent walk-in, who attended the May 4 visioning session. These materials were not drafts, notes, or correspondence with private individuals within the meaning of KRS 61.878(1)(i) as construed by this office. See discussion at pages 2 through 5 of 97-ORD-183, enclosed. Nor were they preliminary recommendations or preliminary memoranda in which opinions were expressed or policies formulated or recommended within the meaning of KRS 61.878(1)(j). Id. They were, instead, fully realized computer renderings of alternative uses for the PGDP site presented to the participants, along with other materials, with no admonition or stated restriction on removal or disclosure. One such visualization appears on a powerpoint presentation, prepared by Dr. Ted Grossardt, Program Manager, Policy and Planning Division of the Kentucky Transportation Center and a Project 23: Stakeholder Future State Vision Project "Team Member," that is posted on KRCEE's website, 8 from the May 21, 2009, meeting of the Paducah Gaseous Diffusion Plant Citizens Advisory Board. Because their content constitutes neither drafts, notes, correspondence with private individuals, preliminary recommendations, nor preliminary memoranda in which opinions are expressed or policies formulated or recommended, these exemptions are facially inapplicable. The fact that a use for the site has not been finally resolved therefore has no bearing on our analysis. The corollary of disclosure of these records to the public, including Mr. Donham, without enforceable restrictions on disclosure, was the right to obtain, or in this case retain, a copy. See 05-ORD-060, enclosed (recognizing that "if inspection is permitted, the requester enjoys a corollary right to obtain copies").
KRS 61.878(1)(b), upon which the University relies, authorizes nondisclosure of "[r]ecords confidentially disclosed to an agency and compiled and maintained for scientific research." The disputed visualizations were generated by the University, and therefore not "confidentially disclosed" to it. That exemption is facially inapplicable to the visualizations. So, too, is KRS 61.878(1)(k), authorizing agencies to withhold, [a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " The University relies on 45 CFR 46 as authority for nondisclosure of the visualizations. That regulation contains a subpart providing for a statement, in informed consent documents "describing the extent, if any, to which confidentiality of records identifying the subject will be maintained," but does not address participant disclosure of records or information disseminated to the "subjects." 45 CFR 46.116(a)(5). It is not, therefore, a federal law or regulation prohibiting disclosure of public records or information and is, again, facially inapplicable. Having afforded Mr. Donham the opportunity to inspect the visualizations, without enforceable restrictions on disclosure, he must be provided with copies of those records.
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.
Mark DonhamFrank ButlerBarbara JonesKatherine Adams
Footnotes
Footnotes
1 40 KAR 1:030 Section 1 thus provides:
The Attorney General shall not consider a complaint that fails to conform to KRS 61.846(2), requiring the submission of a written complaint to the public agency and the public agency's written response, if the agency provided a response, and KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial.
2 UK twice extended the deadline for response, in the first instance with respect to Mr. Donham's request and in the second instance with respect to this office's notification of receipt of Mr. Donham's appeal "[d]ue to the [work related] travel schedule of the General Counsel for the University . . . ." Ultimately, it was not the General Counsel who responded to Mr. Donham's request or our notification. We remind the University that the absence of the agency's records custodian or, in this case general counsel, does not toll the agency's response time and that provision should be made for the timely processing of requests or appeals even in her absence.
3 The University acknowledged that researchers "had invited additional members of the public on-site." The researchers read the on-site invitees a description of the project and provided them with a copy of the informed consent document.
4 As noted above, session comments and recordings are not at issue in this appeal by virtue of the fact that Mr. Donham failed to comply with KRS 61.880(1)(a) in raising the issue. 40 KAR 1:030 Section 1.
5 http://www.pgdpcab.org/memberbios.html.
6 We are somewhat baffled by the appearance of a list of "stakeholders" who are identified by name on the Kentucky Research Consortium for Energy and the Environment's website, http://www.uky.edu/Krcee/Links.html, at www.uky.edu/krcee.
7 http://www.uky.edu/PR/News/Archives/2004/May2004/040525_cleanup_funded….
8 http://www.uky.edu/krcee/presentations/CAB_Meeting_052109.pdf.