Request By:
Mr. Jack C. Blanton
Vice Chancellor for Administration
110 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
By letter of March 16, 1989, to Attorney General Cowan, David Green, Projects Editor, The Lexington Herald-Leader Co., has appealed your response to Items 4 and 6 of his March 10, 1989 request to inspect certain records of the University of Kentucky. The records sought are related to the National Collegiate Athletic Association (NCAA) inquiry regarding the University of Kentucky's basketball program.
FINDINGS IN BRIEF
The University of Kentucky acted consistent with KRS 61.870 to 61.884 in promptly responding in writing to a request to inspect its records, and regarding records withheld, in citing the specific statutory exception relied upon in denying inspection, and supplying a brief explanation of the applicability of such exception to the records withheld. An attorney, under the facts involved, would be considered a "private individual" within the meaning of KRS 61.878(1)(g). The fact that individuals, regarding whom records were sought, had been the subject of substantial publicity would not overwhelm applicability of KRS 61.878(1)(g). Further, the agency acted within its discretion in denying inspection of records regarding some individuals, but not others, as the records were different.
FACTUAL BACKGROUND
By request dated March 10, 1989, Lexington Herald-Leader Projects Editor David Green asked, in substance, that the University of Kentucky furnish copies of records regarding eight enumerated topics. The topics were related to an inquiry by the National Collegiate Athletic Association (NCAA) regarding the University of Kentucky's basketball program.
In a response dated March 15, 1989, as the University's custodian of records, you indicated either that records were furnished with the response, or did not exist, except that you denied inspection of records pertaining to two topical areas from among those listed by Mr. Green's March 10, 1989 request. Those two items, and the University's responses to them were:
4) Any correspondence between the university and Eddie Sutton or Cliff Hagan or James Dickey or Dwane Casey or Marta McMackin or Larnetta McDowell or any persons on their behalf since and including Feb. 27, 1989, in any way regarding the NCAA or UK investigations of the basketball program.
Response : A memorandum dated March 7, 1989, from Joseph T. Burch to Coach Eddie Sutton is hereby provided. There is correspondence with a representative of Eddie Sutton which is not being furnished on the ground that such is correspondence with a private individual (KRS 61.878(1)(g)).
6) Copies of any correspondence since and including Feb. 27, 1989, between the university and Chris Mills, LeRon Ellis, Eric Manuel, Sean Woods, Shawn Kemp or Sean Sutton or any of their attorneys or parents regarding the investigation of the basketball program or their eligibility to play basketball for UK.
Response : There is correspondence with an attorney for Sean Sutton which is not being furnished on the ground that such is correspondence with a private individual (KRS 61.878(1)(g)).
Mr. Green appeals regarding these denials. In substance, Mr. Green questions whether either the individuals named, or their attorneys, are "private individuals" within the meaning of KRS 61.878(1)(g). He points out, again in substance, that individuals regarding whom records are requested have been the subject of wide publicity. He notes that the matter is of great public concern. In his letter of appeal, Mr. Green calls attention to the fact that the University released correspondence it had with two individuals who were not university employees. "It is difficult," Mr. Green states, "to see how a UK employee and a UK student should be considered exempted private individuals when . . . [others] are not."
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency ". . . acted consistent with provisions of KRS 61.870 to 61.884."
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
In the instant case the University promptly responded in writing to a request that certain records be provided. It provided some, indicated others did not exist, and denied inspection of two types or categories of records requested. Its response gave a brief explanation of why the records were being withheld from inspection, and cited the specific statutory exception relied upon in denying inspection. A copy of the University's response was promptly forwarded to the Attorney General.
As a threshold matter, the University's response is consistent with the provisions of KRS 61.870 to 61.884.
Regarding the propriety of the specific basis of denial cited, KRS 61.878(1)(g), in relation to the records involved, we note as follows.
In accordance with KRS 61.878(1)(g), a public agency may deny inspection of the following records:
Preliminary drafts, notes, correspondence with private individuals , other than correspondence which is intended to give notice of final action of a public agency.
[Emphasis added.]
Under the facts here involved, a memorandum between the University's counsel and Eddie Sutton was provided to Mr. Green, while copies of correspondence with a representative of Eddie Sutton, and a representative of Sean Sutton, were not supplied. Inspection of such records was withheld on the ground such correspondence constituted correspondence with private individuals pursuant to KRS 61.878(1)(g). It is clear enough from the response that there were no other records that might conform to the requests.
We take "representative," as used in the University's responses, to mean "attorney." We have no reason to believe such counsel is other than a private attorney, i.e., one who would not be termed, for example, a public official. Such an attorney, in our view, is a "private individual" within the plain meaning of KRS 61.878(1)(g). This finding is consistent with the view of this office in OAG 83-79 (copy attached) , which we follow and adopt in this opinion. And see, OAG 82-431, copy attached.
The fact that individuals regarding whom records are sought have been the subject of wide publicity, and the fact of substantial public concern regarding the matter involved, does not overwhelm KRS 61.878(1)(g).
While the University released correspondence with certain private individuals, and not others, it was within the bound of its discretion in so doing. This office believes, and has said previously, that agencies should have uniform policies regarding inspection of their records. If one person (in the absence of a court order) is allowed to inspect a record, all should be allowed to inspect. See for example, OAG 82-394. Still, it is the agency's call regarding which records shall be released, and which denied, so long as its denials are proper in view of KRS 61.878, as we believe they were here. The records that were released regarding two individuals, were different than the records denied regarding two other individuals. Thus there were not different policies regarding inspection of the same records. OAG 82-394, supra.
It might also be noted that the correspondence to private individuals that was released, appears to indicate "final agency action." Inspection of such records could not be properly withheld pursuant to KRS 61.878(1)(g), supra.
We believe the University of Kentucky acted consistent with KRS 61.870 to 61.884 in its responses evaluated here, and that its denials were proper in view of the facts and law.
David Green or the Lexington Herald-Leader Company may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Mr. David Green.