Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Oldham County Judge/Executive Duane Murner violated the Open Records Act in denying Dewey R. Wotring's September 25, 2008, request for, inter alia, records identifying the person who donated $ 100,000 to the Oldham County Fiscal Court. In light of the Kentucky Supreme Court's holding in
Cape Publications, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818 (Ky. 2008), we find that 08-ORD-103 no longer represents persuasive legal authority, but defer to the Oldham Circuit Court to substantively resolve this open records question which has been presented to it in a separate action.
In his September 26 response, Judge Murner advised Mr. Wotring that because the referenced donation "was made on a condition of confidentiality," KRS 61.878(1)(a) authorized nondisclosure of that portion of the record identifying the donor. He questioned Mr. Wotring's invocation of University of Louisville Foundation, above, noting that the case was nonfinal and that Mr. Wotring "badly misrepresented the decision." Judge Murner observed:
You quote from the opinion: "gifts [that] are made to a public institution . . . are subject to disclosure regardless of any requests for anonymity. " But you leave out the beginning phrase which totally alters the sense of your quote, namely, ". . . future donors . . . are aware, and on notice . . . ."
Shortly thereafter, Mr. Wotring initiated this appeal, disputing Judge Murner's statement that University of Louisville Foundation, above, is a nonfinal opinion and asserting that the opinion "became final on September 11, 2008, a full two weeks prior to the request being filed." It was his position that the "need . . . to remove the perception . . .that the donor may be purchasing influence . . . overrides any right to anonymity on the part of the donor. "
In supplemental correspondence directed to this office following commencement of Mr. Wotring's appeal, Judge Murner elaborated on his earlier position by citing 08-ORD-103, a decision issued to the same parties on May 19, 2008, in which the Attorney General affirmed the County Judge's denial of the same request. He maintained that because 08-ORD-103 was not appealed to circuit court, it was legally binding on the parties. Additionally, he noted that "[a]nother person has filed a legal action in the Oldham Circuit Court challenging the anonymity of the same donation [sic], via declaratory judgment," and expressed the belief that the Attorney General's "policy . . . is not to issue an opinion when a specific issue is subject to a court action." While 08-ORD-103 no longer represents persuasive legal authority, and is hereby overruled, we find that Judge Murner correctly states the policy of this office as it relates to the circuit court's superior authority to substantively determine an open records issue when that issue is presented to the court and this office. Accordingly, we defer to the Oldham Circuit Court to resolve this issue.
In 08-ORD-103, issued on May 19, 2008, this office affirmed Judge Murner's denial of Mr. Wotring's request for records identifying the person who donated $ 100,000 to the Oldham County Fiscal Court based on KRS 61.878(1)(a) and a line of open records decisions dating back to 1986. See, e.g., OAG 86-76, 94-ORD-1, 94-ORD-67, 04-ORD-66, 05-ORD-103, and 08-ORD-103. In these decisions, the Attorney General held that public agencies could properly rely on KRS 61.878(1)(a) in withholding the identities of donors but not the amounts donated, on the basis that the donor's privacy interests outweighed the public's interest in disclosure. At page 3 of 08-ORD-103, we noted that this issue was under review by the Kentucky Supreme Court.
Some four months later the Supreme Court's opinion in Cape Publications v. University of Louisville Foundation, above, became final. In that opinion, the Supreme Court declared that the names of donors to a public agency "are subject to the disclosure requirement of KRS 61.871." Id. at 824. In so holding, the Court reasoned:
[T]hough personal in nature, the information sought . . . does not involve the revelation of intensely private information, such as personal income or medical history. The public, on the other hand, has a legitimate interest in the amounts and sources of monies donated . . . [such that] disclosure of the . . . donors' identities would constitute a "clearly unwarranted invasion of personal privacy" within the meaning of the Open Records Act.
Id. at 823. Noting that "the public's interest is particularly piqued by large donations from anonymous donors, and that a legitimate question of influence is raised by such circumstances," the Court recognized a single, narrow exception for anonymous donors who "believed at the time of the gift, that the donation was being made to a private entity," 1 and placed future donors "on notice that their gifts are being made to a public institution and, therefore, are subject to disclosure regardless of any requests for anonymity. " Id. at 824. In light of the Supreme Court's holding, 08-ORD-103, as well as the decisions cited above which preceded it, is and are hereby overruled. 2
Because the precise issue which Mr. Wotring's appeal raises is currently before the Oldham County Circuit Court, we must refrain from further comment in this matter and defer jurisdiction to the court. This conclusion is consistent with a line of decisions dating back to 1988. In OAG 88-78, the Attorney General opined:
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, several newspapers 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; accord 07-ORD-194; 07-ORD-221; 07-OMD-248; 07-ORD-259.
In the latter case, we rejected the agency's argument that this office should not attempt to substantively determine an open records question when the same question was before a circuit court, noting that the underlying action there involved a challenge to the agency's denial of an application for a zone change and not a records access dispute. See also, 04-ORD-058 (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 challenge to a university's refusal to award an individual an athletic scholarship and not public access to records relating to that refusal). In these decisions, the Attorney General declared that "the open records issue is not the matter being litigated. " 97-ORD-73, p. 4; 04-ORD-058, p. 5. In the appeal now before us, and in the pending Oldham Circuit Court, the open records issue is "the matter being litigated. " It is the central issue in the declaratory action before that court and not merely incidental to it. Therefore, we must defer to the Oldham Circuit Court to substantively determine the open records question now before it under the rule clearly articulated by the Kentucky Supreme Court in Cape Publications, Inc. v. University of Louisville Foundation, Inc., above.
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 The status of the University of Louisville Foundation, Inc., as a public agency was unclear until November 2003 when the Kentucky Court of Appeals issued an unpublished opinion in which it determined that "the Foundation is a public agency under KRS 61.870(1)(j)." University of Louisville, Inc. v. Cape Publications, Inc., WL 22748265 (Ky. App. November 21, 2003).
2 In Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008), the Supreme Court held that "[t]he Attorney General was permitted to reexamine - and even reject - its former interpretation of the law." The Court cited In re Hughes & Coleman, 60 S.W.3d at 544 for the proposition that an administrative agency "may reexamine its prior decisions and depart from its precedents . . ." Where, as here, the Supreme Court has adopted a position that is contrary to the Attorney General's, we have no alternative but to do so.