Request By:
Thomas H. Lyons, Esq.
University Counsel
University of Louisville
Louisville, Kentucky 40292
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Jon L. Fleischaker, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of the request of staff writer Alan Judd of the Courier-Journal to inspect various records and documents in the custody of the University.
In a letter dated September 24, 1986, Mr. Judd had asked you to permit him to examine all expense accounts filed during the most recent fiscal year by President Donald Swain, all vice presidents of the University and all current and past members of the University's Board of Trustees. He asked that the documents include reports of expenses incurred in Louisville and on out-of-town trips and that any documentation filed with the expense accounts be included such as receipts or other explanatory material.
You replied to Mr. Judd in a letter dated October 17, 1986, and you advised him in part as follows:
"Enclosed per your request you will find copies of checks for expense reimbursement made to the President and Vice Presidents of the University (including the Provost) in our fiscal year July 1, 1985, to June 30, 1986. This includes their reimbursement for expenses incurred in Louisville as well as out-of-town together with receipts and other supporting documentation. No reimbursement was made to any trustee.
"Per KRS 61.878(1)(a) and in consideration of the privacy of donors and donor prospects, their names have been deleted from justification for certain entertainment expenses paid from private funds. Because of this deletion from the records requested, I am providing a copy of this letter and your request to the Attorney General."
In his letter of appeal to the Attorney General, Mr. Fleischaker referred to Mr. Judd's letter requesting access to information pertaining to expense reimbursements made to University officials for expenses incurred in soliciting and entertaining donors and prospective donors. Mr. Fleischaker maintains that you improperly caused names of persons being entertained with University funds to be deleted from the documents furnished. He further maintains that the information deleted from Mr. Judd's inspection does not fall within the statutory exemption set forth in your letter [KRS 61.878(1)(a)] as it is not information of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. He states that the fact that the University took a donor or potential donor to dinner is not an unwarranted invasion of personal privacy and how a public university spends its money is of legitimate concern to the public.
The undersigned Assistant Attorney General talked with you by telephone on November 18, and November 21, 1986. You advised that the expenses in question were paid by the University from private funds. While the names of the donors and potential donors were withheld the amount of funds expended on behalf of these persons was set forth. These persons did not receive cash or checks from the University directly or in the form of reimbursements, they merely had the costs of functions they attended paid by the University. These persons attended the functions in question with the expectation of privacy and it is your opinion that the University's fund raising attempts will be hampered if the names of the persons are released.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order requiring inspection are those records described in KRS 61.878(1)(a) as, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
The right of privacy has been defined in part in 62 Am.Jur.2d Privacy § 1 as follows:
"A judicially approved definition of the right of privacy is that it is the right to be free from the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. The right of privacy has also been defined as the right to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned . . . ."
In 77 C.J.S. Right of Privacy § 2 the following appears in part:
"It has been stated broadly that the right of privacy is designed to protect those persons with whose affairs the community has no legitimate concern from being dragged into an undesirable and undeserved publicity, and to protect all persons from having matters which they may properly prefer to keep private made public against their will . . . ."
The court, in Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109, 111 (1981), said in part that in determining whether disclosure of information would involve an unwarranted invasion of privacy, the test to apply is the balancing of interests of the parties as well as those of the public measured by the standard of the reasonable man.
In an earlier case, Perry v. Moskins Stores, Ky., 249 S.W.2d 812, 813 (1952) the court said in part relative to the right of privacy:
". . . It is based on the right of an individual to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which it is not necessarily concerned. However, the right is not absolute. The rule defining the extent of the right is based on the premise that the standard by which the act is judged is that of a reasonable man. Since there is no hard and fast definition of the right, each case must turn on its own facts. Such a rule necessitates a balancing of the interests of the two parties in litigation, as well as those of the public." (citations omitted)
Thus, the situation presented by this appeal involves the right of privacy of various individuals and the public's right to know. The right to protection against an unwarranted invasion of personal privacy must be balanced against the public's right to know. The public and the newspaper have been advised of the amount of the funds expended but they have not been told the specific names of the persons for whose benefit the funds were expended.
An integral part of the operation of any university or college is the school's efforts to raise funds and secure donations. Perhaps some persons enjoy whatever publicity they receive as the result of their donations. However, other persons or organizations prefer that their efforts and considerations relative to donations be kept confidential. This may be particularly true in the case of those making or considering the making of large donations since if this becomes known, generally, they may be contacted and pressured by many other organizations seeking donations. Thus the expectation of privacy of the donors or potential donors in this particular situation is of importance.
While the right of privacy of the donors or potential donors is an important consideration the public is being protected also as the amount of funds expended by the University has been made known. If, for example, University spending in such a situation is an issue or will be an issue the public knows how much is being spent even if it does not know specifically on whose behalf it has been spent.
Therefore, it is the opinion of the Attorney General that the University's refusal to release the names of the donors and potential donors on whose behalf the University expended money in connection with University fund raising efforts can be supported by the privacy exception to public inspection set forth in KRS 61.878(1)(a) of the Open Records Act, particularly since the University has already released the actual amounts of money spent in such situations.
As required by statute a copy of this opinion is being sent to the appealing party who is also the legal counsel for the requesting party, and Mr. Fleischaker has the right to challenge this opinion in the appropriate circuit court pursuant to KRS 61.880(5).