Skip to main content

Request By:

J. Patrick Abell, Esq.
General Counsel
Office of the Governor
Capitol Building
Frankfort, Kentucky 40601Mr. Jerry Frantz
Executive Director
Administrative Services
Kentucky Commerce Cabinet
Capital Plaza Tower, 24th Floor
Frankfort, Kentucky 40601


Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General

Jon L. Fleischaker, Esq., has appealed to the Attorney General pursuant to KRS 61.880, on behalf of his client, The Courier-Journal, your partial denials of the requests of The Courier-Journal's Frankfort Bureau Chief to inspect various documents in the custody of the Governor's Office and the Commerce Cabinet.

Mr. Tom Loftus of The Courier-Journal, in a letter to Mr. Abell, dated June 14, 1988, made the following request for records from the Governor's Office:

"The number of tickets and the cost of the tickets purchased by the state for the 1988 Kentucky Derby. I also request a copy of any lists of the recipients of such tickets.

If such lists of names do not exist, I request access to any records showing the recipients of the tickets.

Guest or invitation lists for the pre-Derby party at the Governor's Mansion the evening before the Derby, and similar lists for the brunch held the Sunday morning after the Derby. "

Mr. Abell replied to this request, in a letter dated June 16, 1988, and advised Mr. Loftus as follows:

"In response to your open records request of June 14, I have been informed that no state funds were expended for tickets to the Kentucky Derby.

Guest or invitation lists to the pre-Derby and post-Derby parties at the Governor's Mansion are exempt from disclosure under KRS 61.878(1)(a)."

Mr. Loftus, in a letter to Mr. Frantz dated June 22, 1988, requested access to the following records and documents:

"Records showing the names of any and all persons who were guests of the state at the Griffin Gate Marriott resort, the Capital Plaza Hotel or other hotels for events surrounding the 1988 Kentucky Derby.

Also, any other expenses for travel, entertainment and meals for those guests.

The names of the 25 recipients of sets of 'My Old Kentucky Home' julep cups purchased by the state for guests of the cabinet during Derby week."

Mr. Frantz replied to this request, in a letter dated June 27, 1988, and advised Mr. Loftus in part as follows:

"The provisions of this statute which this agency considers applicable to your request are KRS 61.878(1)(a) and (c). These provisions apply to the records requested because we consider the information contained therein to be confidential and of a personal nature whereby public disclosure thereof would constitute an unwarranted invasion of personal privacy. Further, disclosure of this information may tend to prejudice the prospective location of a business or industry in the Commonwealth. Thank you and we regret that we cannot be of full assistance to you on this request. I have attached the most recent detail regarding 'expenses for travel, entertainment and meals for these guests', for which the Commerce Cabinet paid.

Additionally, the 25 julep cups sets alluded to in your inquiry were erroneously identified as derby promotion items. Although they were purchased for promotional use they have no relationship to derby and records are being corrected."

In his letter of appeal to this office Mr. Fleischaker takes exception to your reliance upon KRS 61.878(1)(a) and (c) to exclude from public inspection documents relating to the list of names of persons who stayed at state expense at various hotels, in connection with the 1988 Kentucky Derby activities, and the list of names of persons who attended pre and post Kentucky Derby parties at the Governor's Mansion.


The exceptions to public inspection relied upon by the public agencies provide that certain public documents may, in the absence of a court order authorizing inspection, be withheld from public inspection. KRS 61.878(1)(a) states that public records containing information of a personal nature may be withheld where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(c) provides in part that public records pertaining to a prospective location of a business or industry may be withheld where no previous public disclosure has been made of the business' or industry's interest in locating in, relocating within or expanding within the Commonwealth.

In regard to the written response of a public agency to a request to inspect documents, KRS 61.880(1) states in part that an agency response denying inspection of a record shall include a statement of the specific exception relied upon to support withholding the record and a brief explanation of how the exception applies to the record withheld. KRS 61.880(2) contains a provision that the burden of proof in sustaining the withholding of a document shall rest with the public agency. In this regard see also KRS 61.882(3).

On the basis of the evidence and documents presented in this particular matter, we are unable to uphold a blanket utilization of KRS 61.878(1)(c) to exclude from public inspection the entire list of persons staying at public expense at various hotels in connection with activities involving the 1988 Kentucky Derby. There is nothing to indicate that the events in question were other than public in nature. The public agency has not adequately demonstrated that KRS 61.878(1)(c) is applicable in this particular situation.

This office has on numerous occasions upheld a public agency's use of the privacy exception to public inspection. There are situations and circumstances where material pertaining to people may be withheld as it has no relationship to or bearing upon the workings of government or the performance of people connected with the government.

In this situation, however, we are concerned with lists of people, most of whom are apparently from the private sector, who have at least on this one occasion established a connection with the government. They have attended a government sponsored event in connection with the 1988 Kentucky Derby festivities. The events in question involved the expenditure of public funds and, in the case of the activities of the Mansion, also involved a state maintained facility and the utilization of some state personnel.

The state has expended certain sums on behalf of the people whose names are on the lists in question and apparently the amounts of money expended have been released. The public agencies have merely asserted that the privacy exception is applicable relative to the names of these persons but there is no showing of how the exception applies in this particular situation. The court, in Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (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 standards of the reasonable man.

When the "balancing of interests" test is applied here, disclosure wins out over the retention of the lists containing the names of the persons attending the various events. This is particularly true when the governmental agencies have failed to set forth any compelling or convincing reasons why the recipients of the state provided entertainment need to remain anonymous. In OAG 80-310, copy enclosed, at page two, we said in part as follows:

". . . Nor do we agree with you that disclosing the described records would constitute a clearly unwarranted invasion of personal privacy as exempted by KRS 61.878(1)(a). Your agency is conducting the public's business and the public has a right to know the identity of the recipients of the benefits of the agency's program which outweighs any privacy interest of the recipients. "

It is, therefore, the opinion of the Attorney General that the exceptions to public inspection set forth in KRS 61.878(1)(a) and (c) are not applicable under the facts and information made available and that the public agencies have incorrectly withheld from public inspection the list of names of persons who stayed at various hotels at state expense, in connection with the 1988 Kentucky Derby activities, and the list of names of persons who attended pre and post Kentucky Derby parties at the Governor's Mansion.

As required by statute a copy of this opinion is being sent to the appealing party, Jon L. Fleischaker, Esq. If you and the public agencies disagree with this opinion or decide not to comply with the findings and conclusions expressed herein you have the right to initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

The Sunshine Law Library is not exhaustive and may contain errors from source documents or the import process. Nothing on this website should be taken as legal advice. It is always best to consult with primary sources and appropriate counsel before taking any action.
Open Records Decision
Lexis Citation:
1988 Ky. AG LEXIS 62

Support Our Work

The Coalition needs your help in safeguarding Kentuckian's right to know about their government.