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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 by invoking KRS 61.878(1)(a) in support of the partial denial of ESPN Producer Justine Gubar's April 6, 2005, emailed request for "records of contributions along with donors' names, publicly identified or not, to the athletic department including the Cardinal Athletic Fund and all other entities that do fundraising for the athletic department . . . from 1/1/05-4/5/05." For the reasons that follow, and based on the authorities cited, we affirm the University's denial of that portion of her request relating to the identities of donors, with the exception of the two corporate donors that requested anonymity, but find no support for the denial of that portion of her request relating to the amounts of the donations.

In an emailed response dated April 15, 2005, University Open Records Officer William J. Morison furnished Ms. Gubar with a list of corporate donors and amounts, redacting the identities of two such donors based upon the donors' "special pleas for anonymity and the athletic department ['s agreement to] abide by their wishes." Dr. Morison indicated that he had "not attached the list of private donors and the amounts of their gifts during this period." He explained that the University "does not release lists of the names of private individuals and their donations because [the University] believe[s that] disclosure of their identit[ies] in the absence of their permission would violate their privacy rights." In support, Dr. Morison cited KRS 61.878(1)(a) authorizing public agencies to withhold public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " On May 2, 2005, Ms. Gubar initiated this appeal, contesting the view that "release of the names of private donors constitutes an invasion of privacy, " and noting that "[n]umerous universities release this information."

In supplemental correspondence directed to this office following commencement of Ms. Gubar's appeal, University Counsel Angela D. Koshewa amplified on the University's position. Relying on

Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994), Ms. Koshewa asserted that "[w]hat a person chooses to do, especially in making charitable gifts, with his or her income is a private matter the disclosure of which serves no public good." She reasoned:

In Zink, the Court of Appeals stated that when weighing the privacy interest of the individual against the public interest of disclosure, that the public interest is to what extent disclosure provides information as to what the government is doing. In this instance disclosure of private donor information does not yield any information concerning how the money donated is spent, that is, how the Athletic Association or the University is using the donated funds. Instead disclosure reveals personal financial information or where certain individuals choose to donate money and how much. As stated in Zink at p. 829, "few things in our society are deemed of a more intimate nature than one's income." The same can be said of how one disposes of that income.

Additionally, she noted, "[t]he Attorney General has . . . upheld the nondisclosure of donor information such as is sought here" in 94-ORD-67, 94-ORD-1, and OAG 86-76. On this basis, the University of Louisville urged this office to affirm its partial denial of Ms. Gubar's request.

While we concur with the University in the view that existing legal authority permits nondisclosure of the names of private donors, we are aware of no authority permitting nondisclosure of the amounts donated by private donors. Accordingly, we find that the University properly withheld the names of private donors on the basis of KRS 61.878(1)(a), but that it improperly withheld the amounts donated by the private donors. With reference to the identities of the two corporate donors that requested anonymity, we find that the University failed to meet its burden of proving personal privacy interests in the corporate donations of sufficient weight to overcome the public interest in monitoring the University to assess how its decisions may be influenced by its funding.

As recently as April 2004, the Attorney General reaffirmed the principle that a private donor's privacy interests outweigh the public's interest in disclosure of records relating to donations first articulated in OAG 86-76 and later in 94-ORD-1 and 94-ORD-67. See 04-ORD-066; see also 02-ORD-177 and 02-ORD-221. At that time, we acknowledged that the issue of access to records reflecting donors' identities was before the Kentucky Court of Appeals, 1 but concluded our decision, as well as each of the cited decisions, by holding that although the amount of pledges, contributions, or donations must be disclosed, the names, addresses, and other personal identifiers of the private donors could properly be withheld under authority of KRS 61.878(1)a). In 04-ORD-066, this office held that the City of Hiseville properly relied on the cited exception in denying a request for records identifying by name donors to a city owned cemetery maintenance fund, but that it was required to disclose the amounts donated "to enable the public to accurately monitor the amounts received in donations and correlate those amounts to the amounts expended on the purpose . . . for which they were solicited." 04-ORD-066, p. 7. "[T]his resolution of the issue" the Attorney General concluded, "strikes a reasonable balance between the necessity of governmental accountability and the significant privacy interests implicated." Id.

At page 6 of 04-ORD-066, we noted that we were:

not prepared to depart from a line of decisions dating back to 1986 unless the Court of Appeals or Kentucky Supreme Court determines that our longstanding position is erroneous.

This line of decisions, we observed, was premised on the notion that:

some persons enjoy whatever publicity they receive as a result of their donations. However, other persons prefer that their . . . donations be kept confidential. This may be particularly true in the case of those making . . . large donations. If this becomes known, generally, they may be contacted and pressured by . . . other organizations seeking donations.

04-ORD-066, p. 7.

Since our decision in 04-ORD-066 was issued, the Kentucky Court of Appeals has issued its opinion in University of Louisville Foundation, Inc. v. Cape Publications, Inc. d/b/a The Courier-Journal, above. 2 On May 20, 2005, the Court of Appeals concluded that the identities of all private donors, and not just those who had specifically requested anonymity, should be exempt from disclosure. The court likened the case to Zink v. Commonwealth, above, and

Hines v. Commonwealth, Ky. App., 41 S.W.3d 872 (2001), opining:

In Zink, an attorney sought records of the Department of Workers' Claims, specifically reports of employers about on-the-job injuries. The attorney sought to use the records to expand his client base through direct marketing. In Hines, a commercial finder of rightful owners of unclaimed property sought access to the Department of Treasury's lists of the value of unclaimed property. Both cases share a common thread; we held in each case that the information sought would reveal little or nothing about the operations of the public agency and much about the private individuals. Since the Foundation has been held to be a public agency, there are other ways in which its operations may be scrutinized through the Open Records Act without impinging on the privacy interests of its donors.

Id. Continuing, the court observed:

[W]e perceive a possibly significant intrusion on the donors' privacy should these records be held subject to disclosure. As this court has noted before in Zink and Hines, if this information is open to one it is open to all, inviting unwanted attention and unwarranted intrusion. The public interest may be a notch above the de minimis interests at issue in Zink and Hines, but performing the balancing test prescribed by our Supreme Court in LFUCG, we conclude that the privacy interests of the donors to the Foundation outweigh the public interest in disclosure and hold that all of the records should be held exempt from disclosure.

Id. at 5-6. Characterizing the circuit court's logic in holding that a donor's request for anonymity somehow weighs in the analysis as flawed, the Court of Appeals concluded that "unless the donor specifically waives the right to privacy, it should remain protected whether requested or not." Id. at 6. A copy of the Court of Appeals' opinion is attached hereto, and the reasoning set forth therein, which is consistent with the line of open records decisions discussed above, is incorporated by reference.

In adopting the Court of Appeals' reasoning, we note that the court did not extend privacy protection to the amounts donated. In OAG 86-76, this office held that the public interest is protected when the amounts donated are disclosed, enabling the public to know "how much is being spent even if it does not know specifically on whose behalf it has been spent. " OAG 86-76, p. 3; see also, 04-ORD-066, p. 7 (holding that "[t]o the extent that the existing responsive records identify the amounts donated, those records must be disclosed"). Consistent with these authorities, and as required by KRS 61.878(4), 3 we believe it is incumbent on the University to make available for Ms. Gubar's inspection, or provide her with copies of records which disclose, the amounts donated after redacting the names and personal identifiers of the donors. 4

With reference to the identities of the two corporate donors that requested anonymity, we remind the parties that in another unpublished opinion, The University of Louisville Foundation, Inc. v. Cape Publications, d/b/a The Courier-Journal, No. 2002-CA-001590-MR (November 21, 2003), the Kentucky Court of Appeals rejected the circuit court's view that "neither corporations nor private foundations had an exercisable privacy interest in their charitable donations, " and remanded the case to the circuit court "for a [case-by-case] consideration of each corporation or private foundation that made a gift. " Id. at 19. The court reasoned that "[a]lthough KRS 61.871 states that the exceptions shall be strictly construed, and KRS 61.882(3) puts the burden on the agency to provide the exception, there may be an expectation of personal privacy for some corporations or private foundations." Id. at 20. On remand, the circuit court found that the Foundation's claim that 75 corporate or private entities requested anonymity was unsupported "by information pertaining to why any individual entity requested anonymity or other information that would factor into the court's analysis as required by the appellate decision." Cape Publications, Inc. v. The University of Louisville Foundation, Inc., No. 01CI03349 (Jefferson Circuit Court, November 24, 2004), p. 3. On this basis, the circuit court concluded that the Foundation had not met its "burden of proving personal privacy interests in the corporate and foundation donations" and that "the public's interest in monitoring the University of Louisville far outweighs whatever personal privacy interest may be at stake." Id. at 3, 4.

In the open records appeal before us, we are presented with no information supporting the two corporations' "special pleas for anonymity, " and therefore find that the University has not met its statutorily assigned burden of proof 5 relative to the personal privacy interests of these corporations. Accord, 04-ORD-197 (holding that Kentucky State University presented no evidence that donations made to it by Bell South had been conditioned upon nondisclosure of records identifying the donor or the amount donated, or any other evidence that would support a claim that the corporation's privacy interests outweigh the public's interest in monitoring KSU's receipt of corporate donations and in gauging the extent to which these donations are tied to the exercise of corporate influence, including access to board members and administrators, and involvement in KSU's bid process and the award of contracts). (Copy enclosed.) Based on the reasoning set forth in 04-ORD-197, we conclude that the University of Louisville improperly withheld the names of these corporate donors. 6

In sum, we find that the University of Louisville properly relied on KRS 61.878(1)(a) in withholding the names of private donors but not the amounts donated, and that the University did not meet its burden of proving personal privacy interests in corporate donations of sufficient weight to overcome the public's interest in disclosure of the identities of the two corporate donors that requested anonymity. The University should be guided accordingly.

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.

Footnotes

Footnotes

1 University of Louisville Foundation, Inc. v. Cape Publication, Inc. d/b/a/ The Courier-Journal, 2003-CA-002040-MR and 2003-CA-002049-MR.

2 We acknowledge that University of Louisville Foundation, above, is a nonfinal and unpublished opinion that cannot be cited or used as authorization in any other case in any court in the state, per CR 76.28(4). Further, we acknowledge the likelihood that Cape Publications will seek additional appellate review. Nevertheless, we are even less inclined to depart from the line of decisions of this office after University of Louisville Foundation insofar as it confirms our earlier view.

3 KRS 61.878(4), "[i]f a public record contains material which is not excepted under [KRS 61.878(1)(a) through (l)], the public shall separate the excepted and make the nonexcepted material available for examination."

4 Personal identifiers include home address, home telephone number, bank account number, credit card number, and social security number.

5 KRS 61.880(2)(c).

6 It is our understanding that the University provided Ms. Gubar with records documenting the amounts of corporate donations received.

Disclaimer:
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Requested By:
ESPN
Agency:
University of Louisville
Type:
Open Records Decision
Lexis Citation:
2005 Ky. AG LEXIS 107
Forward Citations:
Neighbors

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