Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky High School Athletic Association (KHSAA) violated the Open Records Act in denying the April 2, 2004 and October 19, 2004 open records requests of Dennis R. Foust to inspect correspondence which had been received by the KHSAA with respect to a March 10, 2004 memorandum prepared by Larry Boucher, Assistant Commissioner, KHSAA, to Athletic Directors at Calloway County, Christian Fellowship, Marshall County, and Murray High Schools regarding seeding plans. We conclude that the KHSAA is a "public agency" for purposes of the Act; that the failure of the agency to respond to the requests was a procedural violation of KRS 61.880(1); that the requested records are not exempt from disclosure under KRS 61.878(1)(i); and the KHSAA failed to establish that the records are exempt from disclosure under KRS 61.878(1)(a) and (j).
In his letter of appeal dated November 17, 2004, Mr. Foust indicated that as of the date of his letter, the KHSAA had not responded to his requests.
After receipt of notification of the appeal and a copy of Mr. Foust's letter of appeal, Theodore R. Martin, KHSAA attorney, provided this office with a response to the issues raised in the appeal. In his response, Mr. Martin argued that the KHSAA is not a public agency subject to the Open Records Act and, assuming for the sake of argument that it was subject to the Act, the requested documents would be exempt from disclosure under KRS 61.878(1)(a), (i), and (j).
In support of his position that KHSAA is not a public agency subject to the Act, Mr. Martin explained:
The KORA [Kentucky Open Records Act] only applies to public records maintained by public agencies. See KRS 61.872. In Yanero v. Davis, 65 S.W.3d. 510, 527, 530 (2001), the Kentucky Supreme Court specifically held that the KHSAA is neither a political subdivision of the state or a state agency. Accordingly, the KHSAA is not subject to the KORA.
The KHSAA also does not fit within any of the definitions for public agency contained in KRS 61.870(1). The KHSAA is a private, unincorporated association of public, private and parochial schools. Indeed, part of the Requested Records includes correspondence from a parochial school. Further, the KHSAA is neither created pursuant to a statute nor by any state or local authority. Moreover, the KSHAA derives no money directly from the state treasury, and the vast majority of its revenue is derived from tournament revenues. Lastly, the majority of the KHSAA's governing body, the KHSAA Board of Control, is not appointed by a public agency and it is not controlled by a public agency. Indeed, only four of the eighteen members of the KHSAA Board of Control are appointed by the KBE [Kentucky Board of Education]. Thus, the KHSAA is not a public agency under the KORA.
In support of his position that the requested documents are exempt from disclosure under KRS 61.878(1)(a) and (i), Mr. Martin explained in relevant part:
Here, the Requested Documents are correspondence from the athletic directors of KHSAA member schools relating to a seeding decision in their basketball region. One of the schools is a parochial school. The athletic directors sent correspondence to the KHSAA in confidence that they were private in nature. If the Attorney General's Office requires the KHSAA to release the private correspondence sent by the athletic directors, they will not feel confident making claims of discrimination in seeding. Further, Foust already has in his possession a copy of KHSAA's notice of final action. In short, the Requested Records are exempt from disclosure under KRS 61.878(1)(a) and (i).
Subsequently, Mr. Foust provided this office with a reply to Mr. Martin's response. Addressing the issue of whether the KHSAA was a public agency, Mr. Foust countered that KHSAA's position that the Kentucky Supreme Court's holding in Yanero v. Davis, that the KHSAA is neither a political subdivision of the state or a state agency, supported its position that the KHSAA is not subject to the Open Records Act was misplaced. In his reply, Mr. Foust argued, in relevant part:
. . . In Yanero, the Court stated, "The KHSAA claims it is entitled to either sovereign immunity or governmental immunity. However, it is clearly not a political subdivision of the state . . . and the fact that many of its member schools are private or parochial institutions, not enjoying governmental immunity, precludes its being characterized as a state agency. " Yanero, 65 S.W.3d at 530. However, one cannot immediately conclude now that the KHSAA is not subject to the KORA. The Court went on in Yanero to say in the same paragraph, "However, it is an agent of the Kentucky Board of Education, and in that capacity, functions the same as if the Board had designated an individual, eg, KHSAA Commissioner Stout, to manage interscholastic athletics. As such, the KHSAA is entitled to the qualified official immunity available to officers and employees of the state. Id.
Yanero v. Davis must be put into perspective in that it is a case dealing with sovereign immunity, governmental immunity and qualified immunity, and is not a case dealing with the Open Records Act.
Addressing the KHSAA's argument that the requested records are exempt under KRS 61.878(1)(a), (i), and (j) of the Open Records Act, Mr. Foust, in respect to KRS 61.878(1)(a) , stated in part:
In this case, a decision was made by the Kentucky High School Athletic Association with respect to seedings for tournaments dealing with the three public high schools being required to play at Christian Fellowship School. The correspondence which led to this decision could not possibly be of a personal nature. The undersigned has no knowledge as to what is contained therein which is the reason the undersigned is seeking that information. Further, courts redact information on a daily basis, and if anything of a personal nature existed, it could be redacted.
With respect to KHSAA's reliance upon KRS 61.878(1)(j), Mr. Foust noted that no argument was made with respect to the application of that provision to the requested records.
With respect to the application of KRS 61.878(1)(i), Mr. Foust commented:
Appellant agrees that he has received the information of the final action, but does not believe that the letter sent by the Athletic Directors are preliminary drafts, notes, or correspondence with private individuals which KRS 61.878(1)(i) intended to exempt from disclosure. For the KHSAA to claim that the Athletic Directors in question are private individuals is wrong. An analogy can be drawn to the law in the area of law and slander, dealing with public figures vs. private individuals and the manner in which the law deals with each. In this case, the athletic directors of the schools in their working capacities are not private individuals, but are employees of their various school systems. While some of the member schools of the KHSAA are in fact private schools or parochial schools, they are members of the KHSAA by choice, and it is not possible to argue that a body such as the KHSAA is exempt from disclosing information from athletic directors because a member is a private or parochial school. By the school's own action, it has entered into the public eye by joining the KHSAA. That is a matter of choice, not something which the school is compelled to do.
We are asked to determine whether the actions of the KHSAA in response to Mr. Foust's open records requests were in violation of the Open Records Act. For the reasons that follow, we find that the KHSAA is a "public agency" for purposes of the Act; that the failure of the agency to respond to the requests was a procedural violation of KRS 61.880(1); that the requested records are not exempt from disclosure under KRS 61.878(1) (i); and the KHSAA failed to establish that the records are exempt from disclosure under KRS 61.878(1)(a) and (j).
In prior decisions, this office has determined that the KHSAA is a public agency for purposes of the Open Records Act. OAG 78-191; 98-OMD-94. In reaching this determination, we stated in latter decision:
. . . Instead, we are guided by OAG 78-191 in which this office held that the meetings and records of the KHSAA are governed by the Kentucky Open Meetings and Open Records Act. In that opinion, we acknowledge that the KHSAA is a "voluntary unincorporated association composed of accredited secondary schools," and that "generally a private association is not a public agency" for purposes of the Open Meetings Act. OAG 78-191, p. 1 and p. 2. Nevertheless, we held that "the nature and history of the Association in question . . . make it an exception to the general rule. " OAG 78-191, p. 2. Our review of the creation, composition, and control of the KHSAA led us to conclude that "it is a policy making board of an institution of education or other state agency, [and] it is a committee, subcommittee or subagency of a public agency which is created by or pursuant to statute." OAG 78-191, p. 4. We confirmed this view in a letter to Billy V. Wise, then Commissioner of the KHSAA, dated May 12, 1992. We see no reason to depart from that view today.
Although the KHSAA was originally created as a private, voluntary, unincorporated association, it assumed a public character as a policy making board of an institution of education when, pursuant to KRS 156.070(2) and 702 KAR 7:065 Section 1, it was designated by the Kentucky Board of Education as the agency responsible for managing interscholastic athletics in the schools. As the Board of Education's agent, KHSAA is subject to extensive Board oversight and financial accounting requirements. See, e.g., KRS 156.070(2) (requiring Board approval of its rules, regulations, and bylaws); 702 KAR 7:065 Section 3 (requiring submission of various financial accounting documents to the Board). Charged with the duty "to manage interscholastic activities at the high school level in the common schools," 702 KAR 7:065 Section 1, and authorized to promulgate administrative regulations, KRS 156.070(2), the KHSAA performs a public function, prompting the United States District Court to declare it "a de facto instrumentality of the State Board of Education." OAG 78-191, p. 2, citing Alston v. Kentucky High School Athletic Association (citation unavailable).
98-OMD-94, pp. 3, 4. Accordingly, we again conclude the KHSAA is a public agency for purposes of the Open Records Act. 98-OMD-94. We agree with Mr. Foust's position that Yanero v. Davis is inapposite to the instant appeal in that it is a case dealing with sovereign immunity, governmental immunity and qualified immunity, and not a case dealing with the Open Records Act.
Because the KHSAA is a public agency for purposes of the Open Records Act, its failure to respond to the open records requests of Mr. Foust constituted a procedural violation of KRS 61.880(1) , which requires a public agency to respond to an open records request within three business days after receipt of the request.
In its argument that the requested records are exempt from disclosure under KRS 61.878(1)(a) and (j), the KHSAA merely cited the statute and the language of KRS 61.878(1)(a) and in the case of KRS 61.878(1)(j) merely cited the statute.
KRS 61.880(1) provides, in relevant part, that:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
In
Edmondson v. Alig, Ky.App., 926 S.W.2d 856 (1996), the Kentucky Court of Appeals commented on the public agency's obligations under this provision when the agency believes that requested records are not subject to disclosure. At page 858 of that opinion, the court observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response to [a] request [does not] even remotely compl[y] with the requirements of the Act -- much less . . . amount [] to substantial compliance.
Id. at 858 (emphasis added).
Thus, a public agency has a burden of justifying the withholding of a record by reference to the appropriate exception and by briefly explaining how that exception applies to the particular document(s) withheld. KRS 61.880(1). It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the particular records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882 to justify the nondisclosure of a public record. 94-ORD-154; 93-ORD-67. Accordingly, the KHSAA must either provide Mr. Foust with a brief explanation of how the cited exceptions apply to the records withheld or make the records available for inspection.
The correspondence from the Athletic Directors cannot be characterized as "preliminary draft" or "note." KRS 61.878(1)(i). Given the rule of strict construction of the exceptions to public inspection which is codified at KRS 61.871, the Attorney General has narrowly construed this exception to apply, in general, to records which constitute "an aid to memory or . . . the basis for a fuller statement, as, for example, written or shorthand notes," or "a tentative version, sketch, or outline of a formal and final written product such as a draft report" 97-ORD-183, p. 4, and "letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " 00-ORD-168, p. 2.
KRS 61.878(1)(i), relative to correspondence with a private individual "is generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " 00-ORD-168, p. 2; 01-ORD-104. The three Athletic Directors of the public schools are public employees, not private citizens, and correspondence between them and the KHSAA relating to their positions as athletic directors would not be exempt from disclosure under KRS 61.878(1)(i).
Finally, both parties acknowledge that Mr. Foust was provided with a copy of the KHSAA's final action on the "Seeding Plans." Generally, the complaint that led to or spawned the investigation and the report setting forth the final agency action, and any investigative records that are adopted as a basis for the agency action or the decision to take no action relative to the investigation are records subject to public inspection.
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 830 S.W.2d 373 (1992); 98-ORD-117; 94-ORD-27. 03-ORD-024. Under this general rule, Mr. Foust would be entitled to a copy of the complaint that spawned the investigation.
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.