Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Open Records Act in denying Scott White's January 21, 2004 request for "[a]ll videotapes of practices of the varsity football scout team for the period September 1, 2003 through December 16, 2003." Mr. White is an attorney representing Ryan Holifield in ongoing litigation with the University concerning the University's failure to award Mr. Holifield an athletic scholarship. 1 For the reasons that follow, and upon the authorities cited, we find that the Attorney General is vested with authority to substantively determine the open records question this appeal raises, inasmuch as that open records issue is not before the circuit court, and affirm the University's denial of Mr. White's request.
In his February 17, 2004 response, 2 University Open Records Officer William J. Morison denied Mr. White's request on the basis of the Open Records Act's "personal privacy exemption, and possibly the proprietary exemption in KRS 61.878 as well." 3 Dr. Morison explained:
The football office has films of perhaps fifty hours of team practices during the fall of 2003. In order to review these records and understand their nature, I went to the football office and viewed some footage on some practices. There I learned U of L uses a digital technology, not videotapes. The coaches don't make videotapes any more. Football staffers record the team's practices. The practices consist of having the scout team run the next opponent's offenses and defenses to help the team prepare for the upcoming game.
U of L doesn't release these tapes because they reflect the development of plays and formations the coaches use as they prepare for their next opponent. That's why they have screens around the practice field and don't allow visitors or the media to observe the practices.
In light of all this I am going to deny your request to inspect these practice films. Like the football team's playbooks, they are highly confidential.
It was the University's position that "the framers of the Kentucky Open Records Act [could not have] contemplated such an application" to public agency records.
On appeal, Mr. White argues that the University's reliance on KRS 61.878(1)(a) and KRS 61.878(1)(c)1. is misplaced. He maintains that existing legal authority does not recognize "a public agency's privacy interest (here, the varsity football team) over the public's right to know." (Emphasis in original.) Moreover, he notes, the University improperly relied on the "propriety records" exemption since that exemption has been construed to apply only to records disclosed to a public agency by a private entity and not to records generated by a public agency. In sum, Mr. White observes:
The public records we seek to inspect are not exempt from disclosure. The digital images . . . are of practice sessions occurring in the 2003 season, not the upcoming competition year.
He asserts that the University "has failed to carry its burden in proving that there is a [protected] privacy [interest]" in the disputed records or that those records can properly be characterized as proprietary in nature.
In supplemental correspondence directed to this office following commencement of Mr. White's appeal, Stephen F. Schuster, an attorney representing the University of Louisville in Mr. Holifield's lawsuit against the University and Coach Robert Petrino, asserted that "Mr. White's appeal should be denied . . . [because t]he substance of his request is already in the hands of the Jefferson Circuit Court." Relying on KRS 61.878(1), 4 he advised:
KRS 61.878(1)(a) [sic] states, in pertinent part: ". . . no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery: . . ." There is a compelling reason for the Attorney General's Office to deny Mr. White's present appeal allowing the issue to be resolved by the Jefferson Circuit Court. If the tapes in question are required to be produced by the Attorney General's Office, no protective provisions apply - they simply would be provided. On the other hand, if the Jefferson Circuit Court should rule that the tapes should be disclosed, the Court can impose restrictions on their use as a condition of discovery, and those conditions can be enforced under the penalty of contempt of court and other sanctions.
Mr. Schuster amplified on his client's position that KRS 61.878(1)(a), the privacy exemption, shields the requested records from inspection, noting that because Coach Petrino is a named defendant in the pending litigation, his privacy interests are implicated by the request, and that the courts have recognized a right of privacy relative to corporate documents in at least one published opinion,
Southeastern United Medi-Group, Inc. v. Hughes, Ky., 952 S.W.2d 195 (1997). 5
With reference to the University's invocation of KRS 61.878(1)(c)1., Mr. Schuster argued that "[v]ideotapes of practice sessions are essentially a coach's playbook being demonstrated and put to the test," and that they are proprietary, notwithstanding the fact that Mr. White's request is restricted to the 2003 season, because they remain "valuable property of which any opposing team would love to have copies in order to learn more about Coach Petrino's offensive and defensive schemes."
Finally, Mr. Schuster advanced the argument, for the first time, 6 that the Family Educational Rights and Privacy Act, codified at 20 U.S.C. § 1232g and incorporated into the Open Records Act by operation of KRS 61.878(1)(k), 7 might be implicated by Mr. White's request, suggesting that these "FERPA privacy issues . . . can be settled more readily in court."
In a line of decisions dating back to 1988, the Attorney General has recognized:
It is clear from KRS 61.882 that the legislature has vested the circuit courts with authority overriding that of the Attorney General in determining open records questions. Under [certain] statutory circumstances, it would be improper for this office to attempt to substantively determine an open records question when the same question is before a circuit court.
OAG 88-78, p. 3. In OAG 88-78, the Lexington Herald-Leader appealed to the Attorney General the University of Kentucky's denial of its request for records related to the NCAA's inquiry into the University's athletics program. Shortly thereafter, the Courier-Journal filed a joint petition for declaration of rights in the Fayette Circuit Court the "specific focus" of which was the issue of whether records relating to the NCAA inquiry must be made available for inspection under the Open Records Act. Similarly, in 93-OMD-81 the complainant simultaneously initiated an open meetings appeal to the Attorney General and an action in circuit court, alleging the same violation of the Open Meetings Act, and requesting the same relief in each forum. In both cases, the Attorney General declined jurisdiction, reasoning that "a person cannot seek relief from [the Attorney General] under [KRS 61.880/61.846] . . . when the same questions . . . are currently pending before a circuit court under [KRS 61.882/61.848]." 93-OMD-81, p. 2; see also, 03-ORD-238. Thus, "where the issue before the circuit court is whether disputed records must be made available for inspection under the Open Records Act, the Court's authority 'to substantively determine [the] open records question' clearly supercedes that of the Attorney General." 97-ORD-73, p. 3.
This is not the case here. In his circuit court action, Mr. Holifield challenges the University's failure to award him an athletic scholarship. It cannot be persuasively argued that the specific focus of that action is disclosure of the disputed records under the Open Records Act. "Simply stated, the open records issue is not the matter being litigated." 97-ORD-73, p. 4 (holding that Attorney General was not precluded from issuing a decision in an open records appeal because the specific focus of the civil action in the courts was a zoning change and not public access to records relating to the zoning change).
We find no support for the University's position that the Attorney General is precluded from deciding the open records issue presented in this appeal by the language found at KRS 61.878(1). In interpreting that language, quoted above, the Kentucky Court of Appeals has opined:
That statute does not exempt or exclude all records from the open records disclosure, in favor of discovery in litigation or anticipated litigation cases, but limits the release of records specifically listed in KRS 61.878(1) to those records which parties can obtain through a court order. The gist of this wording is not to terminate a person's right to use an open records request during litigation, but to limit a court on an open records request on excluded records, to those records that could be authorized through a court order on a request for discovery under the rules of Civil Procedure governing pretrial discovery.
Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860, 863 (2001) (emphasis in original). Reaffirming the principle that "the Legislature clearly intended to grant any member of the public as much right to access to information as the next," 8 and quoting from Attorney General's decisions holding that "[a]lthough there is litigation in the background of the open records request . . ., the requester . . . stands in relationship to the agency under the Open Records Law as any other person," 9 the court refused to interpret KRS 61.878(1) in such "an absurd and unreasonable" way as to allow a nonparty's right of access while disallowing a party's right of access. Thus, Mr. White "stands in relationship to" the University under the Open Records Law as any other person.
Turning to the question of the propriety of the University of Louisville's reliance on KRS 61.878(1)(a), we find the University's arguments unpersuasive. While the University may invoke that exemption on behalf of Coach Petrino as a basis for denying the public access to records in its custody relating to the Coach, such as his medical records or records containing personal information such as his home address or social security number, 10 we fail to see how records reflecting the discharge of his official duties, namely coaching the University's football team, qualify for exclusion under KRS 61.878(1)(a). Given the line of decisions recognizing that when a request is made for records relating to a public agency employee, KRS 61.878(1)(a) "applies only to matters entirely unrelated to the performance of public employment," OAG 78-133, p. 3, we reject the University's position.
Similarly, we reject the University's reliance on privacy concerns implicated by the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, incorporated into the Open Records Act by operation of KRS 61.878(1)(k). In a recent decision, this office affirmed the University's reliance on this federal confidentiality provision as the basis for denying a request for handwritten graduate student program evaluations. See 04-ORD-052. Having determined that the evaluations qualified as education records, within the meaning of 20 U.S.C. § 1232g(4)(A), that were easily traceable to their student authors, within the meaning of 34 CFR § 99.3, by virtue of the student's handwriting, a unique personal identifier or "fingerprint," we found that FERPA operated as a bar to disclosure. In contrast, we find no support for the proposition that a recording of student athletes engaged in football practice qualifies as an education record. Because the content of practice tapes is the functional equivalent of the content of game tapes that are regularly broadcast to the public, we find that the University's position with respect to the former is a somewhat perilous, and legally unsupportable, one. 11
Finally, we reject the University's reliance on KRS 61.878(1)(c)1. as the statutory basis for denying Mr. White access to the requested practice tapes. That provision authorizes public agencies to withhold "records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed." 12 This office has consistently recognized that in order to qualify for exclusion under KRS 61.878(1)(c)1., public records must be:
1) confidentially disclosed to an agency or required by an agency to be disclosed to it;
2) generally recognized as confidential or proprietary; and
3) of such a character that disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed them.
See, e.g., 96-ORD-135; 97-ORD-66; 97-ORD-132. On at least two occasions, the Kentucky Supreme Court has analyzed this provision, concluding that the public agencies which had invoked it on behalf of a private entity met their statutory burden of proof. In
Marina Management Services, Inc. v. Cabinet for Tourism, Ky., 906 S.W.2d 318 (1995), the Court held that records containing financial information of privately owned marina operators were exempt from disclosure. The Court reasoned that disclosure would provide an unfair advantage to competitors by allowing them to ascertain the economic status of the marina operators. At page 319 of that opinion, the Court observed:
The records submitted to the Parks Department include information on asset values, notes payable, rental amounts on houseboats, related party transactions, profit margins, net earnings, and capital income. These are records of privately owned marina operators, disclosure of which would unfairly advantage competing operators. The most obvious disadvantage may be the ability to ascertain the economic status of the entities without the hurdles systematically associated with acquisition of such information about privately owned organizations. Further, the facts on the record indicate that the audit statements were disclosed confidentially to Tourism and the Auditors Office. On these facts alone, the exemption clearly applies.
Thus, the Parks Department adduced sufficient proof to support invocation of the exemption.
Similarly, in
Hoy v. Kentucky Industrial Revitalization Authority, Ky., 907 S.W.2d 766, 768 (1995), the Court found:
The financial information required to be submitted by GE in its application to KIRA detailed the company's business and revitalization project. Under administrative regulations adopted by KIRA, such information included a financial history of the corporation, projected cost of the project, the specific amount and timing of capital investment, copies of financial statements and a detailed description of the company's productivity, efficiency and financial stability. . . . It does not take a degree in finance to recognize that such information concerning the inner workings of a corporation is "generally recognized as confidential or proprietary" and falls within the wording of KRS 61.878(1)(c)(2).
Again, the public agency from which access to confidentially disclosed records of a private corporation was sought established that those records were generally recognized as confidential or proprietary. See also, Southeastern United Medi-Group, above.
In the appeal before us, the record supports the University's position that the disputed records are generally recognized as confidential and that disclosure would permit an unfair advantage, albeit not of a commercial nature, to the University's competitors. As the Court noted in the cited opinions, the most obvious disadvantage resulting from disclosure would be a competitor's ability to ascertain strategies and tactics "without the hurdles systematically associated with acquisition of such information." Marina Management at 319. Nor does it take a degree in [sports journalism] to recognize that such information concerning the inner workings of a [football team] is 'generally recognized as confidential . . .'" Hoy at 768. "If it is established that a [record] is confidential or proprietary, and that disclosure to competitors would give them substantially more than a trivial unfair advantage, the [record] should be protected from disclosure . . . ." Southeastern United Medi-Group at 199. In his original response to Mr. White's request, Dr. Morison noted that the tapes "reflect the development of plays and formations the coaches use . . . ." Mr. Schuster subsequently amplified on this view, asserting that tapes of practice sessions "are essentially a coach's playbook being demonstrated and put to the test" the disclosure of which would enable a competing team to "learn more about Coach Petrino's offensive and defensive schemes." We remind Mr. White that although his request pertains to last season's football practice tapes, and his intended use of the tapes would not place the University at a competitive disadvantage, a decision that the tapes are not confidential or proprietary would necessitate the same decision with respect to current practice tapes for football and all other sports at all state supported educational institutions, and render the tapes accessible to all requesters for all purposes, inasmuch as "the Legislature clearly intended to grant any member of the public as much right to access information as the next . . . ." Zink at 828.
Having said this, we cannot affirm the University's denial of Mr. White's request on the basis of KRS 61.878(1)(c)1. because the records he seeks are not "records confidentially disclosed" to the University but are, instead, the University's own records. In at least two decisions, the Attorney General has determined that a public agency improperly relied on this exemption in denying access to records generated by or for the agency. Thus, in 97-ORD-66 we held that Kentucky Employers' Mutual Insurance Authority (KEMI) violated the Open Records Act in refusing to disclose operational and financial records, as well as personnel files, that it created in the ordinary course of business, under authority of KRS 61.878(1)(c)1. At pages 8 and 9 of that decision, we observed:
By its express terms, this provision is inapplicable to records generated by KEMI as opposed to records confidentially disclosed to KEMI or required by KEMI to be disclosed to it. KRS 61.878(1)(c)1. It is aimed at protecting records of private entities which, by virtue of involvement in public affairs, must disclose confidential or proprietary records to a public agency, if disclosure of those records would place the private entities at a competitive disadvantage . . . .
Operational and financial records, as well as personnel files, created by KEMI in the normal course of business do not fall within the wording of KRS 61.878(1)(c) 1. That exemption's protection simply does not extend to the agency's own records. If, on the other hand, KEMI requires a private employer seeking to purchase workers compensation insurance from it to disclose records which are generally recognized as confidential or proprietary, and KEMI can demonstrate that release of those records would permit an unfair commercial advantage to the private employer's competitors, then KEMI can properly rely on KRS 61.878(1)(c)1. Otherwise, this provision has no application. Bearing in mind, once again, that "the exceptions provided for by KRS 61.878 . . . shall be strictly construed," we find that KEMI improperly relied on this exemption. KRS 61.871.
Similarly, in 01-ORD-87 we rejected the Franklin Electric Plant Board's reliance on KRS 61.878(1)(c)1. to support its denial of a request for the minutes of its meeting, and financial projections submitted to the board by a sister electric plant board acting as an outside consultant since these were records generated by or for the Board. At page 7, we reasoned:
In the case of financial projections, the "entity that disclosed the records" is the outside consultant, a sister electric plant board. No claim is made that the sister plant board would be competitively disadvantaged by disclosure, and none could be made since the financial projections relate to the Franklin Electric Plant Board. [Footnote omitted.] In the case of minutes of regular meetings, such records are not "confidentially disclosed to an agency or required by an agency to be disclosed to it" nor are they "generally recognized as confidential or propriety." The fact that comments were ill-advisedly made in the course of an open, public meeting that placed the Board at a risk of competitive harm is not enough to bring minutes reflecting those comments within the scope of KRS 61.878(1)(c)1.
See also, 01-ORD-143. As records generated by the University, these football practice tapes do not enjoy the protection of KRS 61.878(1)(c)1.
Nevertheless, the proof presented by the University relative to the competitive harm that would flow from disclosure of the practice tapes, necessitating the development of new strategies, tactics, and plays each time the tapes are disclosed in response to an open records request, suggests another basis upon which the University may properly deny Mr. White's request. Although there is no "catch-all" exception to the Open Records Act for records the disclosure of which would compromise significant agency operations and functions, the Attorney General has recognized:
that a public agency may properly invoke KRS 61.872(6) to deny a request for public records . . . if release of those records would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records, or information contained therein. Such a request may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:
In more general terms, and with respect to other public records . . . [for example, records containing the account number of a public official's credit card, or the combination to a government vault or safe] nondisclosure is warranted if the records could be used to circumvent the law. If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies.
95-ORD-121, p. 8 (affirming jail's denial of inmate request for policy and procedures manual containing details of security systems currently in place on the basis of KRS 61.872(6)); 97-ORD-129 (affirming drug task force's denial of request for that portion of its manual dealing with the use of confidential informants); 99-ORD-83 (affirming Owensboro Police Department's denial of request for its Crime Com computer program relating to formulated investigative strategies aimed at crime reduction in targeted geographic areas of the city); compare 99-ORD-51 (holding that Revenue Cabinet's reliance on KRS 61.872(6) to deny access to Kentucky Revenue Protest and Appeals Guidelines was misplaced); 99-ORD-131 (holding that police department improperly relied on KRS 61.872(6) to deny access to detective's work schedule); 02-ORD-211 (holding that the Kentucky State Police improperly relied on KRS 61.872(6) to deny access to names of the members of Governor Paul Patton's security detail).
Here, as in 95-ORD-121, we believe it is "incongruous to attribute to the General Assembly an intention to require public agency revelation of . . . public records which would facilitate" misuse, abuse, and subversion of the spirit of competition. 95-ORD-121, p. 8. While the interest implicated here may not rise to the level of public security and administrative order, we find that it could not have been the Legislature's goal to require disclosure of practice tapes of state supported educational institutions. Further, we find that open records requests for such tapes may properly be denied under KRS 61.872(6) as unreasonably burdensome because their disclosure will necessitate an immediate revision of the subject team's strategy, tactics, and plays. We therefore conclude that the Open Records Act, by and through the cited provisions, authorizes nondisclosure of the requested records.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Scott WhiteMcCoy, West, Franklin & Beal309 North BroadwayP.O. Box 1660Lexington, KY 40588-1660
William Morison, Ph.D.Records CustodianUniversity of LouisvilleEkstrom Library, Room 421Louisville, KY 40292
Angela KoshewaOffice of General CounselGrawemeyer Hall, Room 206University of LouisvilleLouisville, KY 40292
Stephen F. SchusterOgden, Newell & Welch, PLLC1700 PNC Plaza500 West Jefferson StreetLouisville, KY 40202-2874
Footnotes
Footnotes
1 Ryan Holifield v. Bobby Petrino, et al., 04-CI-00487, Jefferson Circuit Court, Division 12 (filed January 20, 2004). In his complaint, Mr. Holifield alleges breach of contract, promissory estoppel, breach of the duty of good faith and fair dealing, and negligent misrepresentation.
2 Although Mr. White does not challenge the delinquency of the University's response in his appeal, and although it appears that the parties engaged in communications and correspondence following submission of the request, we remind the University of the three day statutory deadline for agency response to an open records request codified at KRS 61.880(1).
3 While it appears that the University of Louisville intended to rely on KRS 61.878(1)(a) and KRS 61.878(1)(c)1. in denying Mr. White's request, the University's response did not "include a statement of the specific exemption authorizing the withholding of the record[s]" per KRS 61.880(1) and was, to this extent, deficient.
4 Erroneously cited as KRS 61.878(1)(a).
5 We find no reference to KRS 61.878(1)(a) in the cited opinion which deals instead with the proper interpretation of KRS 61.878(1)(c)1. Nor do we find any reference to a protected right of privacy in corporate documents in that opinion.
6 This office has often recognized that a 40 KAR 1:030 Section 2 response to an open records appeal "should be viewed as an opportunity to supplement, and not to supplant, [the agency's] original denial." 96-ORD-163, note 2. This position should not, however, be construed to prohibit an agency from "offering additional support for the agency's original denial." (Emphasis in original.)
7 This exemption, which Mr. Schuster also failed to cite, authorizes public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation."
8 Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
9 OAG 82-169, p. 2.
10 See 97-ORD-66, and authorities cited therein, for a general discussion of public employee personnel records that fall within the personal privacy exception and personnel records that do not.
11 The University's "Notification of Students' Privacy Rights under FERPA," posted at http://library.louisville.edu, states that the University treats, inter alia, "participation in officially recognized activities and sports, [and] weight and height of athletic team members as directory information, i.e., student information that can be released without the student's consent. 20 U.S.C. § 1232g(a)(5)(B) and 34 C.F.R. § 99.37.
12 Clearly, neither KRS 61.878(1)(b), relating to records confidentially disclosed to an agency for scientific research, nor KRS 61.878(1)(c)2.a. through d., relating to records disclosed in conjunction with specific functions or activities, but not including football practice, authorize nondisclosure of the requested records.