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 violated the Open Records Act in partially denying Courier-Journal reporter Jeff Greer's June 8, 2016, request for "any and all invoices of payments made by the University of Louisville over the last year to The Compliance Group and Chuck Smrt, and to the Stites and Harbison law firm." For the reasons that follow, we conclude that the University violated the Open Records Act procedurally, and in part substantively.
On June 8, 2016, the day the request was received, University records custodian Sherri Pawson responded: "I have asked the appropriate university officials to identify all responsive records and send them to me for review. I expect to have a response for you next week." It appears from the record that the next communication to Mr. Greer was July 16, 2016. KRS 61.880(1) requires a written disposition of a request for public records to be made within three days, excluding weekends and holidays. Since no explanation for the delay was given, we find that the University's response was untimely.
In the July 16 response to Mr. Greer's request, Ms. Pawson stated as follows:
1. Invoices and payments for the Stites and Harbison law firm--I have not identified any responsive records. I understand the UofL Foundation handled Stites invoices during the timeframe of the request.
2. Invoices and payments for The Compliance Group and Chuck Smrt---I have identified the responsive records and upon receipt of payment of the attached invoice I will mail copies to you. Certain data has been redacted from the invoices including names, locations and other identifiers. The redacted information is vital to the ongoing investigation and thus not releasable at this time.
Ms. Pawson proceeded to state that she relied upon KRS 61.878(1)(a), (h), (i), and (j), which she quoted in full, but gave no further explanation of how they applied to the records in question. This constituted a further procedural violation of KRS 61.880(1), which requires a public agency's whole or partial denial of records to include "a brief explanation of how the exception applies to the record withheld." Such explanation must "provide particular and detailed information" as opposed to being "limited and perfunctory."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). The mere statement that "redacted information is vital to the ongoing investigation" addresses none of the exceptions with particularity, and therefore failed to comply with KRS 61.880(1).
On August 22, 2016, Mr. Greer followed up with an e-mail stating: "Sherri, upon further review of these invoices, I'm curious what the university's reasoning is behind redacting Chuck and his employees' flight locations." Ms. Pawson replied on August 23, 2016: "I redacted everything related to the investigation." On September 13, 2016, this office received an appeal from Courier-Journal Sports Director Chris White, challenging the redactions of the locations for the origins and destinations of the flights taken by Chuck Smrt and his investigative team. Mr. White states: "I cannot find a legal reason the flight data would be withheld, and none was cited."
The only records at issue in this appeal are the redacted flight data found in Mr. Smrt's invoices to the University. As we noted in 16-ORD-197, Mr. Smrt is the investigator contracted by the University of Louisville and its Athletics Department "to conduct an internal investigation of the widely reported allegations surrounding the men's basketball team." In a response to this appeal dated September 19, 2016, Ms. Pawson states:
The Open Records Act expressly excludes from production information compiled in the process of detecting or investigating criminal, statutory or regulatory violations (KRS 61.878(h)) [ sic ]. The locations where Smrt's team traveled goes to the heart of the investigation. Identifying where they traveled would provide details and likely aid in the identification of witnesses/persons of interest in the ongoing investigation. As the investigation is not concluded, these documents are not available for release.
In a subsequent response on behalf of the University, however, attorney Craig C. Dilger focuses on a different argument:
The University emphasizes that disclosure of the documents ? would violate KRS 61.878(1)(a), as the invoices are "public records containing information of a personal nature" and thus, "the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " In addition, disclosure of the documents ? would violate the Kentucky Family Educational Rights and Privacy Act, KRS 160.700, et seq. Because of the [K]FERPA and privacy interests involved, any disclosure, inadvertent or otherwise, of the documents enclosed herein would be detrimental to the University, its student athletes and potential student athletes involved.
In particular, revealing the locations to which Mr. Smrt traveled would allow members of the public to easily ascertain the identities of young men who may have been questioned during the course of the investigation. These young men may or may not have engaged in any illicit activities and may or may not have been associated with the spectrum of prostitution; nevertheless, the ability of the public to determine their identities will cause these young men to suffer the consequences of forever being associated with the University's 2015-16 NCAA investigation. Finally, the young men who may or may not be implicated are not employees of the government; rather, they are student-athletes who either enrolled or considered enrolling at the University during the period of time investigated by the NCAA. It is on their behalf that we have redacted the locations of Mr. Smrt's travel.
? We urge the Attorney General's office to consider the far-reaching and long-term implications of allowing the public to identify the young men who may have only been 17 or 18 years old when they were recruited by the University's men's basketball team, and the possibility that merely being interviewed by Mr. Smrt will implicate them with a prostitution sex-scandal for the rest of their lives.
We begin by addressing this argument.
KRS 61.878(1)(a) privacy analysis
KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
The public interest in open records has been analyzed as follows by the Kentucky Court of Appeals:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). In this case, there is a public interest in knowing the amounts paid to The Compliance Group by the University and the services received.
The privacy interest in this appeal, meanwhile, is somewhat analogous to that at issue in 12-ORD-227, where we affirmed the redaction of identifying information on witnesses interviewed in a police investigation, as well as on an individual who was suspected of a crime but never charged. In so ruling, we cited
Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government, 297 S.W.3d 579 (Ky. App. 2009), in which a student athlete had been accused of rape but never arrested or charged with a crime. As the court noted, "it must be acknowledged that disclosure of a rape suspect's identity would certainly constitute an invasion of personal privacy and would most likely subject the suspect to a certain amount of public scorn, ridicule, and possibly harassment." Id. at 584. Although there is no question of rape involved here, we find that a similar privacy interest would attach to an allegation of "illicit activities ? associated with the spectrum of prostitution."
We found in 12-ORD-227 that a heightened privacy interest existed inasmuch as the suspect had not been charged with a crime. Therefore, we concluded that in order for the public interest to prevail, "the interest in disclosure must be supported by a demonstration that 'disclosure of this particular suspect's identity' is essential 'to provide an adequate basis to fully investigate police conduct.'" 12-ORD-227 (quoting Lexington H-L Services, supra, 297 S.W.3d at 585). For similar reasons, we ruled that a heightened privacy interest attached to the witnesses who merely had "incidental contact" with the police.
In this instance, the public interest does not have to do with monitoring police conduct as in Lexington H-L Services , but with monitoring expenditures by the University of Louisville for The Compliance Group's investigation. Although The Compliance Group is not engaged in criminal investigation, we believe the existence of a parallel criminal investigation by law enforcement 1 is sufficient to enhance the privacy interest attaching to the identities of those interviewed.
Despite the existence of a heightened privacy interest, however, our in camera review of the disputed information does not support the University's representation that all of the origins and destinations of flights taken by Mr. Smrt and his team would make it possible to deduce the identities of persons interviewed. For example, it is public knowledge that The Compliance Group's headquarters is in Lenexa, Kansas. Therefore, the appearance of Kansas City on an itinerary would not tend to identify any potential basketball recruit. Likewise, travel into or out of Louisville would reveal nothing to compromise any recruit's privacy interest. A layover location would be similarly innocuous. Thus, the University has not met its burden of proof imposed by KRS 61.880(2)(c) to sustain the complete redaction of all travel data.
We are aware of no previous set of facts that would provide significant guidance for this analysis under KRS 61.878(1)(a). We are mindful, however, that travel locations combined with a small population of potential recruits might lead to identification of some interviewees. Since it is beyond our ability to predict exactly which locations would create this privacy risk, we deem the majority of the redacted travel data to constitute identifying information implicating the heightened privacy interest. Since we do not believe that disclosure of all flight information is essential to the public interest of monitoring the University's investigative expenditures, we conclude that the balance of interests favors nondisclosure of most of this information. Accordingly, we affirm the University's redactions of travel data for locations other than Louisville, Kansas City, and layover stops.
KRS 61.878(1)(h), (i), (j), and KFERPA
Since our conclusion under KRS 61.878(1)(a) is not dispositive of all redactions made by the University, we must briefly address the other arguments presented as to the remaining travel data. With regard to the University's argument under KRS 61.878(1)(h), advanced by Ms. Pawson, we note that the "law-enforcement exemption" requires a public agency to satisfy three distinct conditions. 11-ORD-134. Specifically, the subsection applies to:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action? The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRs 61.870 to 61.884.
Thus, a public agency must show that (1) the records are records of law enforcement agencies or agencies involved in administrative adjudication; (2) the records were compiled in the process of detecting and investigating statutory or regulatory violations; and (3) disclosure would harm the agency in one of the specified ways.
In
University of Kentucky v. Courier Journal & Louisville Times Co., 830 S.W.2d 373, 377 (Ky. 1992), the Kentucky Supreme Court rejected the University of Kentucky's claim that records it compiled in the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h). The Court reasoned:
This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication. " Therefore, KRS 61.878(1)[(h)] would not apply.
Having failed to satisfy one part of the three part test found in KRS 61.878(1)(h), the Court rejected the University's claim. The same analysis applies in this appeal. Mr. Smrt is contracted by the University to conduct its internal investigation regarding compliance with the NCAA rules and bylaws. Moreover, we can think of no compelling argument that the disclosure of flight information to Louisville from the airport closest to Mr. Smrt's office would cause the agency any harm. We therefore find no merit in the University of Louisville's reliance on KRS 61.878(1)(h) to redact the entirety of the flight information.
Regarding the University's citations to KFERPA and KRS 61.878(1)(i) and (j), we find that no substantial argument has been developed in the record. Accordingly, the University's burden of proof has not been met as to these arguments.
Conclusion
Therefore, we conclude that the University has not sustained its burden of proof as to the redaction of references to Louisville, Kansas City, and layover stops, as these merely reflect the locations of the University, Mr. Smrt's base of operations, and airline connections. As to the remainder of the travel data, the University has properly invoked KRS 61.878(1)(a). We further find that the University's response to the open records request was procedurally deficient.
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.
Footnotes
Footnotes
1 See 16-ORD-026.