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 University of Kentucky violated provisions of the Open Records Act in denying Samantha Suiter's August 1, 2014, request for copies of "[a]ll active Institutional Animal Care and Use Committee (IACUC) approved protocols for the use of animals in teaching exercises." Ms. Suiter is identified as a Science Education Specialist affiliated with People for the Ethical Treatment of Animals which pursued this appeal on her behalf. We find that the University failed to meet its burden of proof in denying Ms. Suiter's request on the basis of KRS 61.878(1)(a) , (b), (c)1, (c)2, (i), (j), and (k), and the Fayette Circuit Court's opinion in Ky. Coalition for Animal Protection, Inc. v. UK , 87-CI-2728 (Fayette Circuit Court, January 5, 1989).
In the interest of brevity, we summarize the arguments advanced by the parties. On appeal, PETA argues:
. KRS 61.878(1)(a) is inapplicable to the approved teaching protocols because the protocols are generated by public employees discharging their public duties at public expense;
. KRS 61.878(1)(b) is facially inapplicable to the protocols because the protocols were generated by University employees within the scope of their employment and not confidentially disclosed to the University, per the requirement of the exemption, and are maintained for teaching purposes rather than for scientific research, per the requirement of the exemption;
. KRS 61.878(1)(c)1. and 2. are facially inapplicable to the protocols for the same reason, namely the protocols were generated by University employees within the scope of their employment and were not confidentially disclosed to the University per the requirements of these exemptions;
. KRS 61.878(1)(i) and (j) are inapplicable to the protocols because final action on these protocols has been taken in the form of IACUC approval;
. KRS 61.878(1)(k) is inapplicable as it relates to 7 U.S.C. § 2157, prohibiting IACUC disclosure of "confidential information of the research facility" including "the trade secrets, processes, operations, style of work or apparatus" of the facility, because the approved protocols which Ms. Suiter requested address the use of animals in teaching and are aimed at demonstrating principles that are already well-known and not the use of animals in research aimed at discovering, providing, or developing new, and potentially commercially valuable, ideas or techniques.
Citing
Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76, 88 (Ky. 2013), for the proposition that the Open Records "Act forbids blanket denials of ORA requests," PETA argues generally that the University failed to discharge its duty under KRS 61.880(1) by identifying responsive records and providing an explanation of how the exemptions apply to the records withheld. Assuming, arguendo , that portions of the approved teaching protocols are excluded from public inspection, PETA asserts that the University failed to discharge its duty under KRS 61.878(4) by "separat[ing] the excepted and mak[ing] the nonexcepted material available for examination."
In supplemental correspondence directed to this office, the University argues:
. KRS 61.878(1)(a) authorizes nondisclosure of approved teaching protocols because the information they contain "jeopardizes the safety of researchers" and "individuals involved" by identifying the researchers and "individuals involved" and describing activities that might incite harassment of, or violence against, the researchers and "individuals involved";
. KRS 61.878(1)(b) authorizes nondisclosure of the protocols because they consist of "proprietary materials owned by the researchers confidentially disclosed to the University to enable research";
. KRS 61.878(1)(c) authorizes nondisclosure of the protocols because they are "submitted to a state agency for a compelled review or regulatory purpose," and, given "the fierce competition for grants and publications that is a fact of university life [that] may not be well known to those outside of higher education," in academia unpublished results are the type of information 'generally recognized as confidential or proprietary' ";
. KRS 61.878(1)(i) and (j) authorize nondisclosure of the protocols because IACUC approval "is simply one step in the process to conduct research and publish results," because the protocols "outline the planned activities and goals, some of which may or may not occur," and because some protocols may be modified;
. KRS 61.878(1)(k), incorporating provisions of the federal Animal Welfare Act, 7 U.S.C. § 2131 et seq. , prohibit release of any disclosure made to the IACUC.
In general, the University asserts that PETA "trivializes the original and dynamic activities that occur as a part of instruction, and would suggest 'mere' instruction is conducted using dated, well-known materials," ignoring "the reality of instruction, where University faculty conduct a host of innovative activities . . . that include both teaching and research." In support of its position, the University relies on Ky. Coalition for Animal Protection, Inc. v. UK , 87-CI-2728 (Fayette Circuit Court, January 5, 1989), affirming the University's denial of a request for submitted research protocols. Based on more recent authorities, and dissimilarities in the records requested, we find the University's arguments unpersuasive and Ky. Coalition inapposite.
ANALYSIS
Kentucky's Open Records Act contains a legislative presumption favoring access to public records unless the records are subject to one or more of the exemptions codified at KRS 61.878(1)(a) through (n) as "strictly construed." KRS 61.871 ("The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others"); KRS 61.872(1) ("All public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884 . . ..."). Our analysis proceeds from the recognition that "[t]he agency bears the burden of proof, 1 and what it must prove is that any decision to withhold responsive records was justified under the Act."
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 (Ky. 2013). The University's responses, both original and supplemental, are devoid of proof identifying the records withheld, describing the contents of the records withheld, and explaining the application of the exemptions upon which it relies.
A. KRS 61.878(1)(a)
KRS 61.878(1)(a) authorizes public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." In construing this exemption, Kentucky's courts have developed a "mode of decision" that is based on a "comparative weighing of the antagonistic interest" in which the "privacy interest in nondisclosure is balanced against the general rule of inspection and the underlying policy of openness for the public good."
Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994) (citing
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992)). Analysis of whether an invasion of privacy is or is not warranted "does not turn on the purpose for which the request was made or the identity of the person making the request . . . . [T]he Legislature clearly intended to grant any member of the public as much right to access to information as the next." Zink, 902 S.W.2d at 828. However, "the only relevant public interest in disclosure to be considered is the extent to which disclosure . . . furthers the citizens' right to know what their government is doing . . . [and] subject[s] agency action to public scrutiny. Id. at 828, 829. Although the Act "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," it nevertheless "exhibits a bias favoring disclosure. " Kentucky Board of Examiners of Psychologists 826 S.W.2d at 327. As noted, "an agency which would withhold records [under KRS 61.878(1)(a), as well as the remaining thirteen exemptions] bears the burden of proving their exempt status." Id.
The University asserts that the approved teaching protocols contain information of a personal nature that includes personal identifiers of researchers which, if disclosed, could threaten their safety and the safety "of individual[s] involved." 2 Disclosure of the information, the University argues, would constitute a clearly unwarranted invasion of the personal privacy of the researchers and these "individuals involved" by exposing them to these threats. The countervailing public interest in disclosure is premised on the public's right to monitor the operation and administration of a publicly funded
University. Cape Publications v. University of Louisville Foundation, Inc., 260 S.W.3d 818, 822-823 (Ky. 2008) (recognizing that "[a]s a public institution that receives taxpayer dollars, the public certainly has an interest in the operation and administration of the University"). At a more basic level, the public interest is premised on the public's right to ensure that University employees engaged in teaching have discharged their duty under federal law by obtaining IACUC approval of animal care protocols that conform to animal welfare laws. 7 U.S.C. § 2143; 9 C.F.R. § 2.31(a) and (d).
PETA asserts, and our review of the University's website confirms, that the University publishes information about courses in which animals are used for teaching purposes as well as the names of the faculty and staff, department names, office locations, and other contact information. This weakens the privacy argument advanced by the University on their behalf. Against this weakened privacy interest, we weigh the substantiated public interest in the oversight of a publicly funded University's administration and operation and ensuring compliance with federal law. See University of Louisville Foundation, 260 S.W.3d at 822, 823. We find that the privacy interest of faculty and staff in those portions of the protocol in which they and the courses they teach are identified must yield to the public's interest in disclosure. However, under the rule announced in Zink v. Commonwealth , above, contact information, public or private, appearing on the protocols may properly be withheld, notwithstanding its publication on the University's website, because that information does not advance the "citizens' right to know what their government is doing . . . [or] in any real way subject agency action to public scrutiny." Zink, 902 S.W.2d at 829. 3 The privacy interest of faculty and staff in their contact information, although nominal in light of its publication elsewhere, must be accorded deference where no countervailing public interest in its disclosure can be articulated.
B. KRS 61.878(1)(b)
KRS 61.878(1)(b) authorizes public agencies to withhold "[r]ecords confidentially disclosed to an agency and compiled and maintained for scientific research. " PETA cites to the authorities conditioning approval of agency invocation of KRS 61.878(1)(c) 1. and 2. on proof that the records were confidentially disclosed to a public agency by an outside entity and not records generated by the agency. The University responds that "the protocols are the proprietary intellectual property of the individual researchers, not the University . . . [, and] are confidentially disclosed to the University and compiled and maintained to enable scientific research. " The University's reliance on KRS 61.878(1)(b) is misplaced.
In 14-ORD-158 this office affirmed the University of Kentucky's denial of a request for, inter alia , "reports confidentially disclosed to it by the Society of Thoracic Surgeons, under KRS 61.878(1)(b), as it consists of scientific research and analysis." 14-ORD-158, p. 1. At pages 3 and 4 of that decision, we reasoned:
UK confirmed that the reports contain scientific research and were disclosed to it "with the explicit understanding that the University would not disclose the information to others." Our KRS 61.880(2)(c) review of the reports substantiates UK's position. Without disclosing the substantive content of the report, we can confirm that the introductory pages contain a number of statements of confidentiality and restrictions on disclosure by the participant, UK, without the Society's prior express written permission. On these facts, KRS 61.878(1)(b) is facially applicable to the reports. UK did not violate the Open Records Act in denying this part of [the] request.
In the appeal before us, the University presents no proof that the approved teaching protocols were confidentially disclosed to it by an outside entity, such as the Society of Thoracic Surgeons. Further, this appeal is directly analogous to 10-ORD-151, in which we rejected the University's reliance on KRS 61.878(1)(b) as the basis for withholding "visualizations" generated by University employees. University faculty generate protocols for the use of animals in teaching exercises in the course and scope of their employment. KRS 61.878(1)(b) is therefore facially inapplicable to those protocols.
C. KRS 61.878(1)(c)1. and 2.
KRS 61.878(1)(c)1. authorizes public agencies to withhold "records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair advantage to competitors of the entity that disclosed the records." KRS 61.878(1)(c)2. tracks the language of KRS 61.878(1)(c)1. but omits the required showing that disclosure "would permit an unfair advantage to competitors of the entity that disclosed the records." However, KRS 61.878(1)(c)2. requires the agency to prove that the records "are compiled and maintained":
a. In conjunction with an application for or the administration of a loan or grant;
b. In conjunction with an application for or the administration of assessments, incentives, inducements, and tax credits as described in KRS Chapter 154;
c. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person; or
d. For the grant or review of a license to do business.
The University argues, generally, that the approved protocols "are submitted to a state agency for a compelled review or regulatory purpose," but presents no proof that they are compiled and maintained for any of the expressly enumerated purposes. We reject its reliance on KRS 61.878(1)(c)2.
We find that the University's reliance on KRS 61.878(1)(c)1. is misplaced for the same reasons we reject its reliance on KRS 61.878(1)(b). In a number of decisions this office has conditioned approval of an agency's invocation of this exception upon presentation of proof that the records were confidentially disclosed to an agency by an outside entity, and not generated by the agency. Citing
Marina Management Services, Inc. v. Cabinet for Tourism, 906 S.W.2d 318 (Ky. 1995) and
Hoy v. Kentucky Industrial Revitalization Authority, 907 S.W.2d 766 (Ky. 1995), both cases in which a private entity was required to furnish records to a public agency that were generally recognized as confidential and proprietary and that would have provided an unfair advantage to competitors if disclosed, as well as a series of open records decisions. In 11-ORD-086 we observed:
These cases, along with the cited open records decisions, demonstrate that the burden of proving that the records withheld qualify for exclusion under KRS 61.878(1)(c)1. rests with the public agency. That exception "is aimed at protecting records of private entities which, by virtue of involvement in public affairs, must disclose confidential or proprietary records to a public agency, if disclosure of those records would place the private entities at a competitive disadvantage." 97-ORD-66, p. 10.
11-ORD-086, p. 4. In 97-ORD-66, we rejected Kentucky Employers' Mutual Insurance Authority's reliance on KRS 61.878(1)(c)1. observing, "By its express terms, this provision is inapplicable to records generated by [KEMI] as opposed to records confidentially disclosed to KEMI or required by KEMI to be disclosed to it."
The record before us is devoid of proof that the approved teaching protocols were generated by an outside entity and thereafter disclosed to the University. As in 11-ORD-086 and 97-ORD-66, the disputed protocols were generated by University employees in the course of their employment. KRS 61.878(1)(c)1. is also facially inapplicable to those protocols.
D. KRS 61.878(1)(i) and (j)
KRS 61.878(1)(i) and (j) authorize public agencies to withhold:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
KRS 61.878(1)(i) and (j) exempt preliminary documents that are not intended to give notice of final action. "However, once such notes or recommendations are adopted . . . as part of its action, the preliminary characterization is lost, as is the exempt status."
Kentucky State Bd. of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953, 956 (Ky. App. 1983); see also 97-ORD-183.
The approved teaching protocols at issue in this appeal cannot be characterized as drafts, notes, or correspondence with a private individual within the meaning of KRS 61.878(1)(i). To the extent they may contain recommendations or expressions of opinion, they do not enjoy protection under KRS 61.878(1)(j) because the teaching protocols have been vetted and approved by the University's IACUC. That committee has taken final action on them and they have forfeited their preliminary character. (Compare Ky. Coalition for Animal Protection, Inc. v. UK , 87-CI-2728 (Fayette Circuit Court, January 5, 1989), in which a circuit court affirmed the University's denial of access to "research protocols submitted to the IACUC" but not approved by the IACUC). The University's argument that they may undergo future modification is unpersuasive. If we accept this argument, "we must conclude that the [protocols] never become final." 97-ORD-183. They are, as PETA asserts, the approved protocols for the use of animals by which University faculty are bound in the performance of their public instructional duties.
E. KRS 61.878(1)(k)
KRS 61.878(1)(k) authorizes public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation." The University invokes this exemption, in tandem with the Animal Welfare Act, 7 U.S.C. § 2131 et seq. , for the proposition that federal law compels it to "maintain the confidentiality of any disclosures made to the IACUC." Our review of the Animal Welfare Act confirms the existence of a single confidentiality provision, 7 U.S.C. § 2157, prohibiting release of "confidential information of the research facility" that relates to:
(1) the trade secrets, processes, operations, style of work, or apparatus; or
(2) the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures, of the research facility.
Nowhere in the Act do we find a blanket prohibition on disclosure of information submitted to, and approved by, the IACUC in a teaching protocol. 4
The Animal Welfare Act does not define the term "trade secret." Kentucky's Uniform Trade Secrets Act, KRS 365.880 to 365.900, defines the term as "information, including a formula, pattern, compilation, program, data, device, method, technique, or process, that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
KRS 365.880(4)(a) and (b). Hence, "[t]he subject matter of a trade secret must be secret." Restatement [First] of Torts Section 757 Comment b.
As noted, the University provides no particulars about its animal use protocol form. In general, the forms are framed to elicit information about the care and treatment of animals used in teaching exercises. The University presents no proof that the forms explore underlying hypotheses or detailed methodology that might, under circumstances not identified here, warrant protection. Simply stated, the University denies access to approved protocols for the use of animals in teaching exercises, in their entirety, and fails to substantiate its claim that the protocols, in their entirety, constitute protected trade secret under 7 U.S.C. § 2157. 5 We therefore find that its reliance on KRS 61.878(1)(k) is also misplaced.
F. Ky. Coalition for Animal Protection, Inc. v. UK
The University advances the argument that the issue presented in this appeal was fully addressed in Ky. Coalition for Animal Protection, Inc. v. UK , (Fayette Circuit Court, January 5, 1989). We believe the case, as described by the University and confirmed by subsequent review, is not dispositive of the question presented in this appeal, namely open records access to "[a]ll active IACUC approved protocols for the use of animals in teaching exercises."
The issue we address today is one of first impression. The Fayette Circuit Court was not asked to determine whether an open records requester is entitled to inspect "IACUC approved protocols for the use of animals in teaching exercises." Instead, the court was asked to determine whether an open records requester was entitled to inspect " research protocols submitted to the [IACUC] Committee" but not approved by the Committee. (Emphasis added.) The court's review of the sampling of research protocols provided by the University confirmed the existence of "detailed outlines for processes, formulae, and research proposed to be conducted by the various authors." Kentucky Coalition for Animal Protection, Inc. , 87-CI-2728 at 2. "The protocols, " the court continued, "reveal some processes which suggest immediate commercial value if the processes are perfected; other protocols reflect research which is part of the regulation of certain industries; and still other protocols appear to be designed to lead to treatment of ailments in both humans and animals. " Id. In the appeal before us, the University presents no proof to support its claim that the approved teaching protocols contain equally sensitive information. We do not believe Ky. Coalition for Animal Protection, Inc. , above, is controlling in this appeal. 6
CONCLUSION
For the reasons set forth above, we find that the University of Kentucky failed to meet its burden of proof in denying Samantha Suiter's August 1, 2014, request for "[a]ll active Institutional Animal Care and Use Committee approved protocols for the use of animals in teaching exercises." Because no open records related public interest sufficient to overcome the faculty and staff's privacy interest in their contact information, both public and private, is articulated, the University may redact this information before disclosing the protocols, but must otherwise make full disclosure of the protocols.
Either party may appeal this decision 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 Citing KRS 61.882(3) ("In an original action or an appeal of an Attorney General's decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the burden of proof shall be on the public agency"); see also KRS 61.880(2)(c) (relating to an open records appeal to the Attorney General and providing that "[t]he burden of proof in sustaining the action shall rest with the agency . . .").
2 The University also advances a privacy claim postulated on "the safety and security of animals and facilities." KRS 61.878(1)(a) addresses personal privacy and has not been extended to animals or facilities by the courts.
3 In Zink , above at 828, the court recognized that "information is no less private simply because that information is available someplace. We deal . . . not in total nondisclosure, but with an individual's interest in selective disclosure." Contact information "reveals little or nothing about an agency's conduct . . . [and] cannot be said to further the principal purpose of the Open Records Act." Zink at 829.
4 Although the University did not describe the particulars of its animal use protocol form and none can be located on its website, PETA located, and provided to this office, the IACUC teaching protocol form available on Eastern Kentucky University's website.
5 The University makes passing reference to the Bayh-Dole Act, 35 U.S.C. § 200, et seq. , authorizing federal agencies to withhold, for a reasonable time for a patent application to be filed, information disclosing an invention in which the federal government may own title or interest. It presents no evidence that its approved protocols for the use of animals in teaching exercises qualify for protection under this Act. The University also briefly references federal copyright law. Although 17 U.S.C. § 106 protects copyrighted materials against unauthorized copying, performance, or creation of derivative works, the University presents no evidence that the protocols, or their content, are copyrighted.
6 We note that other jurisdictions that have addressed similar, though not identical issues, have resolved the issues in favor of at least partial access. Matter of American Society for Prevention of Cruelty to Animals v. Board of Trustees of State University of New York, 147 Misc.2d 847, 556 N.Y.S.2d 447 (N.Y. Sup. 1990) (affirming public's right of access to IACUC approved "Application for Approval of Research on [sic] Educational Activities Involving Animal Subjects" with limited redactions); Mississippi State University v. People for the Ethical Treatment of Animals, Inc., 992 So.2d 595 (Miss. 2008) (upholding University's denial of access to "substantive portions" of protocol forms submitted to IACUC but requiring disclosure of the remaining portions); S.E.T.A. UNC-CH, Inc. v. Huffines, 1101 N.C. App. 292, 399 S.E.2d 340 (1991) (affirming University's denial of access to information that could be patented, and personal information identifying researcher and staff members, found in "application for approval form" submitted to IACUC, but otherwise requiring disclosure of applications);