Opinion
Opinion By: Andy Beshear,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 the University of Louisville Foundation violated KRS 61.880(1) in failing to respond in writing, and within three business days, to Kentucky Center for Investigative Reporting managing editor, Brendan McCarthy's, request to "inspect and/or copy":
. all contracts, contractual agreements, or financial partnerships entered into by the University of Louisville Foundation from Jan. 1, 2014, through [February 8, 2016]; [and]
. all receipts, copies, documents containing payments to contractors, or outside companies/agencies by the University of Louisville Foundation from Jan. 1, 2014, through [February 8, 2016].
Relying on KRS 61.872(6), the Foundation denied Mr. McCarthy's request on March 2, 2016, asserting that the request was "overly broad and blanket in nature." With specific reference to these requests, the Foundation advised:
[T]he number of records implicated numbers in the thousands. During the past two years alone, the Foundation has paid 3,245 vendors that would certainly fall under the broad term of "contractors" resulting in 45,006 invoices. These figures do not include invoices paid on the Foundation's behalf by one of the Foundation's accounting firms before the Foundation began processing all of its invoices through its own systems. Again, the Foundation would be required to spend hours locating and reviewing these invoices. If Foundation employees took only 3 minutes to locate and review each invoice that would amount to over 93 days of employee time.
This appeal followed.
In 16-ORD-164 this office rejected a similar claim advanced by the Foundation in denying Mr. McCarthy's request for attestation and disclosure forms, as well as ethics and financial disclosure forms, for a four year period. A copy of that open records decision is attached and its reasoning adopted as if set forth in full. Mr. McCarthy's request to inspect and/or copy contracts and payment records for slightly more than a two year period, without an accompanying explanation of the challenges associated with retrieval and identification of applicable statutory exemptions necessitating redaction of protected information, cannot be said to impose any greater burden on the Foundation than the request at issue in 16-ORD-164. The Foundation did not assert that producing 47,000 donor records in response to The Courier Journal's 2001 request for records identifying donors and the amounts of their donations was unreasonably burdensome, unsuccessfully arguing, instead, that the records were exempt under KRS 61.878(1)(a).
Cape Publications v. University of Louisville Foundation, Inc., 260 S.W.3d 818 (Ky. 2008). While not precluded from raising the issue on this appeal, the Foundation has previously not viewed a similar volume as burdensome. Compare, 11-ORD-144 (affirming Kentucky State Police denial of request encompassing 52,151 case files, many still open, and requiring manual review of each of the 52,157 case files to produce all subpoenas, subpoena duces tecum, search warrants, court orders, correspondence, or other legal documents pertaining to the acquisition of cell phone location data by KSP as requested.)
However, such records do not, in general, contain protected information. Thus, in 15-ORD-186 this office quoted from a line of decisions dating back to 1990 recognizing that "[a]mounts paid from public coffers are perhaps uniquely of public concern," OAG 90-30, p. 6, and an earlier opinion recognizing that "wherever public funds go, public interest follows," OAG 76-648, p. 2. In a similar vein, this office has long observed that "[a] contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. Such a contractor . . . runs the risk of closer public scrutiny than might otherwise be the case." OAG 90-7, p. 2. Simply stated, there is no basis cited, either explicitly or implicitly that supports the Foundation's position that each contract or invoice must be reviewed for arguably exempt information. 1
Finally, Mr. McCarthy has asked to inspect the requested records, rather than to receive copies by mail, thus obviating the necessity of delegating this duty to Foundation staff and reducing the Foundation's burden. See, e.g., 97-ORD-6, p. 5, citing OAG 81-198, p. 4 (a request for voluminous documents is not, standing alone, indicative of an unreasonable burden where the requester is willing to inspect records, even in the presence of some exempt information, since "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records").
We therefore find that the Foundation's reliance on KRS 61.872(6) was misplaced, and that its failure to produce for inspection contracts and payment records for slightly more than a two year period constituted a violation of the Open Records Act. So, too, did its failure to respond to Mr. McCarthy's February 8, 2016, request in writing and within three business days per the requirements of KRS 61.880(1).
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 The only potentially exempt materials cited by the Foundation are invoices to outside counsel which may contain attorney-client privileged information. The Foundation, however, does not describe how voluminous these records are. Moreover, any privileged information can easily be redacted from this subset of records. Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328 (Ky. App. 2008).