Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether University of Louisville Foundation, Inc., violated the Open Records Act in denying Brendan McCarthy's December 17, 2015, request for "any/all documents related to the placement of University of Louisville Foundation-related funds, property, investments outside the continental United States." (Emphasis omitted.) For the reasons stated below, we find that the Foundation violated the Act.
On December 23, 2015, Kenyatta Martin responded on behalf of the Foundation: "The Foundation does not maintain possession of the requested records." Mr. McCarthy appealed on behalf of the Kentucky Center for Investigative Reporting on August 10, 2016. He pointed out that the Foundation's tax forms indicated extensive investments in Europe, Central America, and the Caribbean, and argued that a public agency cannot relieve itself of its obligations under the Open Records Act by placing records in another location.
Following the initiation of this appeal, Ms. Martin supplemented her December 23 response as follows:
The Foundation has located, and will make available to you, the records attached hereto as Exhibit A.
Please note that although Kentucky's Open Records Act, KRS 61.870 et seq. (the "Act") generally requires that public agencies make their public records available for inspection, the Act exempts ". . .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 commercial advantage to competitors of the entity that disclosed the records[.]" KRS 61.878(1)(c)1. The Foundation, therefore, has redacted portions of the responsive records pursuant to this provision of the Act.
(Emphasis omitted.) The Foundation's attorney, David E. Saffer, argues that this disclosure makes this appeal moot. We do not consider this matter moot, since the records were not disclosed in their entirety.
Given the lack of explanation for why the Foundation at first represented that it had no responsive records, we must find that the initial denial violated the Open Records Act. As for the redactions and claimed exemption under KRS 61.878(1)(c)1, we have been given no description of the documents or the redactions made thereto; nor has the Foundation explained how the purported exemption applies to the redacted material.
KRS 61.880(1) requires that "[a]n agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." (Emphasis added.) Furthermore, such explanation cannot be merely "perfunctory," but must "provide particular and detailed information."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
Ultimately, "[t]he burden of proof in sustaining the action [rests] with the agency." KRS 61.880(2)(c) . Since the Foundation has provided no explanation of what was redacted or how the claimed exemption applies, it has failed to meet its burden of proof. Therefore, we necessarily find that its disposition of Mr. McCarthy's request violated the Open Records Act.
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 proceeding.