10-ORD-229
December 22, 2010
In re: Mark Donham/University of Kentucky
Summary: Decision adopting 10-ORD-151 and holding that all open records requesters stand in the same shoes. Requester in this appeal was not entitled to recordings of community focus group meeting disclosing identity of participants who were given assurances of confidentiality consistent with KRS 61.878(1)(a) notwithstanding the fact that requester was present at the meeting.
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 Kentucky did not violate the Open Records Act in denying Mark Donham’s September 8, 2010, request for “all recording, audio, video, and any other recordings, that were made” of the May 4, 2010, community focus group meeting that was the subject of 10-ORD-151.1 Because disclosure of recordings of the meeting would identify the participants in the focus group, and records identifying the participants were deemed exempt in 10-ORD-151 pursuant to KRS 61.878(1)(a), we find that the analysis contained in that decision is dispositive of the issue in this appeal. A copy of 10-ORD-151 is attached hereto and incorporated by reference. “The individuals who participated in the pilot focus group were given assurances of confidentiality, both orally and in writing, [and] could reasonably expect that their identities would not be disclosed.” 10-ORD-151, p. 6. Accordingly, “their privacy interests outweigh the public’s interest in disclosure . . . .” Id.
In his letter of appeal, Mr. Donham objects to “giving blanket anonymity as to the name [of] any and all random participants in a public meeting, even when they have identified themselves out loud while the meeting is being recorded,” noting that he “wrote freely about the identity of the other participant” on his blog. Continuing, he somewhat confusingly observes:
I did not request the identity of “participants” in my open records request. I requested a list of the advisory board members for the study . . . . Only that issue was before the Attorney General [in 10-ORD-151].
Obviously, there is no mention of any individual members of the advisory board on the tape . . . . So the previous Attorney General ruling is irrelevant in that regard. It only covered release of the advisory board names.
As far as releasing any other names, the only names that would be released by releasing the recordings would be the two members of the public that attended the meeting with me, and the members of the study team . . . .
At page 5 of 10-ORD-151, the Attorney General recognized the confusion surrounding the term “advisory board,”2 but determined that although Mr. Donham was entitled to copies of the materials distributed to him and the other participants, he was not entitled to the names of the advisory board members “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.” As the University correctly notes at page 3 of its supplemental response to this appeal, “[t]here is no way to provide the recording without both identifying the participants and the statements they made under this explicit promise of confidentiality.” Mr. Donham stands in the same shoes as any other open records requester notwithstanding his presence at the sessions. Neither Mr. Donham, nor any other open records requester, may access or copy the recordings by virtue of the privacy exception to the Act.
In his letter of appeal, Mr. Donham complains that “[t]he University made some statements in their reply brief to the last appeal3 (which [he had never] seen but which the AG quoted in his opinion) which contained insinuations about [his] conduct at the meeting.” He characterized these insinuations as “inaccurate” and suggested that the recordings “would allow [him] to defend [him]self with the indisputable proof of what happened.” However compelling his personal need to the recordings may be, we focus on his legal entitlement to the recordings or lack thereof. Based on our analysis in 10-ORD-151, and bearing in mind that records that are available to one are generally available to all, Zink v. Commonwealth of Kentucky, 902 S.W.2d 825, 829 (Ky. App.1994),4 we find that the University properly relied on KRS 61.878(1)(a) in denying Mr. Donham’s request for recordings of the May 4, 2010, meeting, notwithstanding the fact that he attended the meeting and later wrote about it on his blog.
Nevertheless, the University of Kentucky erred in failing to provide Mr. Donham with a copy of its July 16, 2010, supplemental response to his June 28, 2010, appeal. 40 KAR 1:030 Section 2 clearly states:
The agency shall send a copy of this response to the complaining party taking the appeal. If the agency fails to provide such copy, the Attorney General shall provide one upon request.
The notification of appeal issued to the University on June 30, 2010, contained this directive. It is conceivable that this appeal might have been avoided had the University shared its supplemental response with Mr. Donham and he had been given the opportunity to read its comments in context. Consistent with 40 KAR 1:030 Section 2, we are herewith providing him a copy of the University’s June 30 supplemental response in the hope of allaying his concerns about inaccurate insinuations about his conduct.
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.
Jack Conway
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#359
Distributed to:
Mark Donham
Frank Butler
Katherine A. Adams
[1] In his September 8 request and September 29 appeal, Mr. Donham complained about the size of the free copies of the records which the University furnished him as a result of 10-ORD-151 and the cost of enlarged color copies with which the University subsequently furnished him. Enforcement issues arising out of 10-ORD-151 must be pursued in the courts.
[2] The advisory board has also been described as “stakeholders,” “consultants,” “pilot focus group,” and other generic descriptions. 10-ORD-151, p. 5.
[3] 10-ORD-151.
[4] In Zink, the Court of Appeals recognized that “commercial advertisers, solicitors, as well as the merely curious, would have the same right of access [to protected records] under the Open Records Act,” as the presumably well-intentioned lawyer for the purpose of disseminating information to injured employees about their legal rights. Accord 00-ORD-162, note 7 (recognizing that all open records requesters stand in the same shoes and that what is accessible to one is accessible to all.)