Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Kentucky Center for Investigative Reporting managing editor, Brendan McCarthy, appeals the University of Louisville Foundation's 1 belated denial of his February 8, 2016, request for:
. all Attestation and Disclosure Forms completed by Foundation staffers, contractors, and board members; and
. all ethics disclosure forms and financial disclosure forms completed by Foundation staffers, contractors, and board members.
Relying on KRS 61.872(6), the Foundation denied Mr. McCarthy's request on March 2, 2016. The Foundation asserted that his requests were unreasonably burdensome "because they are overly broad and blanket in nature." In support, it argued that responding to the request "would require the Foundation to locate records in a number of offices, warehouses, and storage facilities covering a significant number of 'staffers, ' involving a significant number of board members, thousands of contractors, and spanning a period of just under forty-six years."
Following discussions with Foundation records custodian, Kenyatta Martin, Mr. McCarthy submitted an amended request that specified only responsive records for "the last four years." Mr. McCarthy asserts, and the Foundation does not dispute, that his amended request, which is undated, was submitted in mid-March. 2 Further, Mr. McCarthy asserts, and the Foundation does not dispute, that he emailed Ms. Martin on April 21, and May 11, 2016, to ascertain the status of his amended request. He received no response. On May 23, 2016, he contacted Foundation counsel, David Saffer, who asked that he "recap . . . the outstanding requests you have so we can track them down." Mr. McCarthy provided the requested summary and followed up four days later by reminding the Foundation that it had not yet responded to his amended request submitted three months earlier. At this point, Mr. McCarthy asserts and the Foundation does not dispute, all communication from the Foundation ceased.
On appeal, the Foundation asserts that, "[e]ven as amended, [its] position remained that the requests placed an unreasonable burden on the Foundation, thus permitting it to deny Mr. McCarthy's requests . . . ." As noted, in its denial to his original request, the Foundation advised Mr. McCarthy that:
The Foundation was founded May 28, 1970. Responding to your request would require the Foundation to locate records in a number of offices, warehouses, and storage facilities covering a significant number of "staffers, " involving a significant number of board members, thousands of contractors, and spanning a period of just under forty-six years.
The Foundation did not respond to Mr. McCarthy's amended request, much less elaborate on the burden imposed by producing records for a four year, rather than a forty-six year, period. Having failed to do so, the Foundation did not prove, by clear and convincing evidence, that producing records in response to Mr. McCarthy's amended request constituted an unreasonable burden. Thereafter, the Foundation improperly relied on KRS 61.872(6) in denying his request.
The University of Louisville Foundation violated KRS 61.880(1) by failing to respond to Mr. McCarthy's March 2016 amended request for attestation and disclosure forms, as well as ethics disclosure and financial disclosure forms, "for the last four years to" the date of his request. KRS 61.880(1) mandates a written response to an open records request within three business days of receipt. The Foundation cannot extend the terms of its response to Mr. McCarthy's original request to his amended request, especially when the basis for denial is an unreasonable burden and the second request is narrowed from forty-six years to four years. Thus, the Foundation responded to his original request by minimally describing the burden associated with production of forty-six years of responsive records. The Foundation did not respond, in any fashion, to Mr. McCarthy's March 2016 request until this dispute was appealed to the Office of the Attorney General.
In its response to Mr. McCarthy's appeal, the Foundation asserted that, "[e]ven as amended," his request "placed an unreasonable burden on the Foundation." With specific reference to Mr. McCarthy's March 2016 request for attestation and disclosure forms, as well as ethics and financial disclosure forms for the preceding four years, the record on appeal is devoid of evidence, clear and convincing or otherwise, that the Foundation properly invoked, albeit after Mr. McCarthy initiated this appeal, KRS 61.872(6). Neither Mr. McCarthy, nor this office, has been presented with a good faith estimate of the number of existing attestation and disclosure forms, and ethics and financial disclosure forms, that are responsive to the request, the difficulties associated with retrieval, and whether they contain both exempt and nonexempt information, compelling review and redaction of each form before disclosure.
In
Commonwealth v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008), the Kentucky Supreme Court recognized that "a public agency refusing to comply with an open records request on this unreasonable-burden basis faces a high proof threshold since the agency must show the existence of unreasonable burden 'by clear and convincing evidence. '" The Foundation presents no evidence of unreasonable burden as it relates to Mr. McCarthy's amended request. "[T]he obvious fact that complying with an open records request will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden. " Chestnut, 250 S.W.3d at 665. We therefore find that the University of Louisville Foundation violated KRS 61.880(1) in failing to respond to Mr. McCarthy's March 2016 amended request and improperly denied that request under KRS 61.872(6). Accord, 12-ORD-089 (city failed to present clear and convincing evidence of an unreasonable burden in producing public records).
Either party may appeal this decision 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 It is undisputed that the University of Louisville Foundation is a public agency within the meaning of KRS 61.870(1)(j) and that access to its records is governed by the Kentucky Open Records Act. See, University of Louisville Foundation, Inc. v. Cape Publications, Inc., 2003 WL 22748265 (Ky. App. 2003) (unpublished).
2 Mr. McCarthy asked that the Foundation "provide these forms for the last 4 years to the present."