Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville Foundation, Inc. ("the Foundation"), violated the Open Records Act in the disposition of Kate Howard's May 27, 2016, request for records of expenditures from two funds since January 1, 2010. For the reasons stated below, we find that the Foundation's response was untimely but did not substantively violate the Act.
Ms. Howard's May 27 request, sent by facsimile on behalf of the Kentucky Center for Investigative Reporting, was for the following:
[1] All records of expenditures, including but not limited to invoices, record of payment, expense descriptions and receipts, from the Ramsey-Comm. Bancorp Trust since Jan. 1, 2010;
[2] All records of expenditures, including but not limited to invoices, record of payment, expense descriptions and receipts, from the President's Discretionary Fund since Jan. 1, 2010.
The Foundation responded with a letter from Kenyatta Martin dated June 9, 2016. Although Ms. Martin indicated that the request was not received until May 31, 2016, we note that even from that date it was seven business days until the Foundation responded. KRS 61.880(1) requires a public agency to respond to a request for public records within three days, excluding weekends and holidays. With no explanation for the delay, we must conclude that the Foundation committed a procedural violation of KRS 61.880(1) by responding untimely.
The Foundation's response stated as follows:
With respect to your request described in item 1 above, the Foundation has located, and will make available to you, the chart attached to this letter as Exhibit A showing disbursements from the "Ramsey-Community Trust Bancorp, Inc. Scholarship" fund. Each disbursement was to a scholarship recipient who was at the time a dependent child of a Community Trust Bancorp, Inc. employee but was not a dependent child of an Executive Officer of Community Trust Bancorp, Inc. Because of the prohibitions set forth in the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g; 34 CFR Part 99) ("FERPA"), which is a Federal law that protects the privacy of student education records, we are unable to provide you with the names of the recipients.
With respect to your request described in item 2 above, no disbursements have been made from the President's Discretionary Fund since January 1, 2010.
Ms. Howard initiated an appeal on June 16, 2016, arguing that "almost no records were provided" regarding the Bancorp scholarship fund; "even if FERPA protects the names of students, the relevant records should still be provided with student information removed." As for the President's Discretionary Fund, she states that it "seems unlikely" there were no disbursements since 2009.
In responses on behalf of the Foundation dated July 8 and August 19, 2016, attorney David E. Saffer provides further information in support of the Foundation's position. He reaffirms that no disbursements were made from the President's Discretionary Fund during the relevant period. With no evidence to the contrary, we cannot impugn the veracity of this statement.
Regarding the Bancorp fund, he states that "the Foundation participates in neither the selection nor the notification of the scholarship recipients from the Fund," and that the Foundation possessed no further records on the subject because "with the exception of the Foundation's investment of those funds, they are administered solely by representatives of the University's office of the controller" and Office of Financial Aid ("OFA"). Furthermore, "the Foundation did not maintain information on the recipients of the scholarships."
Mr. Saffer notes that Ms. Howard was informed her request should be directed to the OFA for such information. This is consistent with KRS 61.872(4), which provides that "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. "
Thus, the chart provided to Ms. Howard was the only record possessed by the Foundation at the time of her request. 1 A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. We find that the Foundation has adequately explained the absence of further records, in that the University of Louisville's Office of the Controller and OFA are responsible for administering the scholarship funds. Accordingly, we find no violation of the Open Records Act. 2
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
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