Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Oldham County Judge-Executive violated the Open Records Act by denying the request of Dewey R. Wotring, dated April 10, 2008, that he be provided, in writing, the name of the donor of an anonymous donation of $ 100,000 to the Oldham County Fiscal Court and the project to which the money was donated, under authority of KRS 61.878(1)(a).
By letter dated April 14, 2008, Duane Murner, Oldham County Judge-Executive, timely responded to Mr. Wotring's request, advising:
The project to which the money was donated was expressed on the check stub as "Support Oldham County." It has been deposited to our General Fund.
I will not reveal the name of the donor. To do so would be an unwarranted invasion of personal privacy, a permitted exception to the public records statute, KRS 61.878(1)(a).
Shortly, thereafter, Mr. Wotring initiated the instant appeal, asserting, in part, that an anonymous donation of the size of $ 100,000 "creates the perception that the donor may be purchasing influence" and "in order to remove the perception it is in the best interest that the name of the donor be disclosed."
After receipt of notification of the appeal, Judge Murner provided this office with a response to the issues raised in the appeal. In his response, he advised, in relevant part:
We also believe that the name of a person who has donated money to the County on a condition of anonymity is an exempt record and that we properly relied on KRS 61.878(1)(a), when we denied Mr. Wotring's request to disclose the identity of the person who donated the $ 100,000 to the County. In our correspondence to Mr. Wotring we clearly stated our reasons for not disclosing the identity of the donor.
Responsive to Mr. Wotring's appeal, we cite 04-ORD-066 from the Office of the Attorney General as authority for a public agency to withhold the names of donors under the "privacy" exception to the Open Records Law cited above. In this opinion of the Office of the Attorney General there was a reference [to] a, then pending, appellate case, University of Louisville Foundation v. Cape Publishing, Inc., and although this case was never published and cannot be cited as legal authority, both 04-ORD-066, and the University of Louisville Foundation v. Cape, lead us to the conclusion; that, for the purposes of the Open Records Law, the privacy interest of anonymous donors outweighs the public right to access to records of their identity.
We do not agree with the statement in Mr. Wotring's appeal that a gift of money creates a presumption that some kind of breach of the public trust may have taken place. Given that this particular donation came with "no strings attached," and the donor's identity was kept confidential from the other members of Fiscal Court, that inference is even less credible.
We agree with the Office of the Oldham County Judge-Executive's position that existing legal authority permits the nondisclosure of the name of the private donor and find the agency properly withheld the name of the donor, under the authority of KRS 61.878(1)(a).
This office has consistently upheld the nondisclosure of the names of private donors on the basis that their privacy interests outweigh the public's interest in disclosure of records relating to donations, authority of KRS 61.878(1)(a). See OAG 86-76; 94-ORD-1; 94-ORD-67, 04-ORD-066; and 05-ORD-105. 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." In that decision, this office observed that the line of decisions cited above were 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. Likewise, 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.
Since our decision in 04-ORD-066 was issued, the Kentucky Court of Appeals issued its opinion in University of Louisville Foundation, Inc. v. Cape Publication, Inc. d/b/a/ The Courier-Journal, 2003-CA-002040-MR and 2003-CA-002049-MR, review granted (Dec. 14, 2005). In that decision, 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. However, this case is a nonfinal and unpublished opinion of the Kentucky Court of Appeals that is currently pending before the Kentucky Supreme Court on a granted motion for discretionary review. 1 Until we receive direction from the Supreme Court to the contrary, this office will adhere to our decisions cited above. Accordingly, based on the above authority, we find the Office of the Oldham County Judge-Executive properly withheld the name of the private donor of $ 100,000, donated on a condition of anonymity, under the authority of KRS 61.878(1)(a).
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 Cape Publication, Inc. v. University of Louisville Foundation, 2005-SC-000454 (Discretionary Review Granted Dec. 14, 2005).