Visions of “Spinal Tap” — and Nigel Tufnel’s dissatisfaction with the tiny bread and umpimentoed olives backstage — danced in my head as I wrote yesterday about Western Kentucky University’s handling of an open records request for the university’s contract with Shaquille O’Neal for DJ services.
https://kyopengov.org/blog/shades-spinal-tap-contract-term-record-confi…
WKU released a redacted copy of the contract, asserting that the “hospitality services” section of the contract was shielded from disclosure by — if WKUHerald.com accurately quoted university counsel — KRS 61.878(1)(c).
https://wkuherald.com/69285/news/dj-diesel-performance-featured-130000-…
But this expansive reading of a miscited statute is nothing to laugh about.
A university — indeed any public agency — should, at a minimum, properly cite the statute on which it relies. An easy fix, perhaps, but demonstrative of a dismissive attitude toward the open records law that belies university claims of fealty to that law and the public it is intended to serve.
The university’s invocation of a facially inapplicable exception is even more concerning.
The General Assembly tells us that “the basic policy of [the open records law] 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.”
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23058
“Strictly construed,” in this context, means given no broader application than is necessary to effectuate the purpose for which it was enacted.
The “privacy exception” to the open records law exists to protect personal information related to private individuals from clearly unwarranted invasions of their privacy. A public official’s salary is public record — not so the salary of a private individual.
https://caselaw.findlaw.com/ky-court-of-appeals/1257635.html
The “preliminary documents” exceptions exist to secure, where necessary, governmental confidentiality in the period before final agency action is taken.
https://law.justia.com/cases/kentucky/supreme-court/1994/93-sc-967-i-1…
The statute on which WKU relies — correctly cited as KRS 61.878(1)(c)1. — protects records confidentially disclosed to a public agency — or required by the agency to be disclosed — that are “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.”
It’s purpose is to ensure that private entities doing business with the state are not competitively compromised by open records disclosure of trade secrets and proprietary information. It is often invoked by agencies soliciting bids under requests for proposals. Information may be “confidentially” disclosed by vendors in responsive bids that qualifies under the exception.
Neither a contract, nor a particular term of a contract, is a record confidentially disclosed to a public agency. A short-sighted public agency that includes confidentially disclosed information in a contract has no one to blame for its tenuous legal position but itself.
“Hospitality services” may, in some worlds, be recognized as “confidential or proprietary,” but simply saying it is so does not make it so. The public agency, here WKU, has the burden of proving that it’s reliance on the exception, here KRS 61.878(1)(c)1., is justified.
And, finally, what or who will be competitively disadvantaged by the disclosure? Shaq? How will his “competitors” gain the upper hand by knowing what “hospitality services” he demands.
The exception on which WKU relies cannot be broadly construed to exempt the redacted contract term — much less strictly construed as required by the open records law.
Why is this important?
Because Kentucky’s universities — whose administrations enjoy monetary and staffing resources far greater than many state and most local agencies — regularly deviate from the open records law with apparent impunity.
https://casetext.com/case/univ-of-ky-v-kernel-press-inc
When admonished for their misconduct, they largely ignore the court’s admonitions. It is — quite frankly — inexcusable.
More importantly, it is illegal.
Were I advising the WKU Herald’s staff, I would encourage the staff to hold the university’s feet to the fire.
Demand that university counsel explain how KRS 61.878(1)(c)1. applies to that part of WKU’s contract with Shaq relating to hospitality services — why hospitality services are confidential or proprietary; who will be competitively disadvantaged by disclosure; and how he, she, or it will be disadvantaged.
Demand that WKU do nothing more or less than the law requires. Demand that it meet “the burden of proof in sustaining” its denial of the newspaper’s request.
I am no longer amused.
