Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Investigative Reporter Kate Howard, Kentucky Center for Investigative Reporting ("Center"), initiated this appeal by letter dated August 18, 2016, challenging the inaction of the University of Louisville Foundation ("Foundation") upon receipt of her August 5, 2016, request "to inspect any/all" of the following records from January 1, 2010, to the present:
1) . . . documents related to donations --- including but not limited to contracts, donor receipts, pledges, payments and related documents --- from Henry J. Heuser, Jr., the Henry Vogt Foundation, and Sapulpa Real Estate Holdings LLC[.]
2) . . . documents related to donations/ donors -- including but not limited to contracts, donor receipts, pledges and related documents -- related to the . . . Foundation's Henry Vogt Scholarship, the Vogt [S]cholarship quasi-endowment and/or the Vogt Building Operations Fund.
3) . . . documents -- including but not limited to check registers, receipts, contracts, notes or other financial documents -- pertaining to the payment or nonpayment of promissory notes between the [Foundation] and CF One.
4) . . . correspondence -- including but not limited to emails, letters, [and voicemails] between [Foundation] staff members and Henry J. Heuser, Jr., David Mack, and/or members of CF One LLC.
5) . . . emails to/from . . . Foundation members James Ramsey, Kenyatta Martin, Keith Inman, Jason Tomlison, Kathleen Smith and/or Burt Deutsch that include any of the following words: "Sapulpa"/"CF One"/"CFONE"/"C F ONE"/"CF1"/"Oklahoma"/"Vogt"/"Heuser"/"Thermal Engineering[.]"
6) . . . emails to/from . . . Foundation board members Joyce Hagen, Larry Benz, Jonathan Blue, Junior Bridgeman, Chuck Denny, Salem George, Margaret Handmaker, Rebecca Jackson, Mark Lynn, Frank Minnifield, Jody Prather, William Selvidge, Debbie Scoppechio, Frank Weisberg, David Saffer that include any of the following words: "Sapulpa"/"CF One"/"Oklahoma"/"Vogt"/"Heuser[.]"
Having received no response of any kind from the Foundation as of nine business days later (August 18, 2016), Ms. Howard correctly noted on appeal that the Foundation "has failed to cite, with specificity, what actions it has taken to fulfill this request or even acknowledge receipt of the request" and it has also failed to provide a "timeline for production."
Upon receiving notification of Ms. Howard's appeal from this office, attorney David E. Saffer responded on behalf of the Foundation. Mr. Saffer advised that Records Custodian Kenyatta Martin issued a written response to Ms. Howard's August 5, 2016, request on August 26, 2016, a copy of which Mr. Saffer attached. In that response Ms. Martin advised that various responsive documents and e-mail correspondence had been located and would be made available. 1 Ms. Martin further indicated that she was including a copy of the "fully-executed Unwind and Collateral Return Agreement . . . dated August 23, 2016, which documents the unwinding of the CF One, LLC, Sapulpa Real Estate Holdings LLC, Foundation transaction. The Foundation is also now in receipt of the original Note, as that term is defined in the Agreement."
Having received no further correspondence regarding the status of the instant appeal, this office subsequently contacted Ms. Howard to confirm that she had received Ms. Martin's August 26, 2016, response as well as the documents that Ms. Martin had agreed to disclose. Ms. Howard confirmed receipt of the Foundation's August 26, 2015, response but expressed concerns regarding the lack of additional documents responsive to items 1 and 2 of the request, specifically documents pertaining to donations and pledges by Sapulpa Real Estate Holdings, LLC. 2 In the series of e-mails that followed, Mr. Saffer provided additional information and explanations in response to inquiries made by this office made under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. The Foundation ultimately provided Ms. Howard with a screen shot of the "Primary Pledge Overview" for Sapulpa Real Estate Holdings, LLC, which addressed Ms. Howard's concern. Because the Foundation ultimately provided all existing responsive documents to Ms. Howard, and explained the nonexistence of additional documents per KRS 61.880(1) and (2)(c), 3 the remaining question is whether the Foundation discharged its procedural obligations under the Open Records Act.
A public agency such as the Foundation is required to comply with the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that each public agency, upon receipt of a request made under the Open Records Act, "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." Although the burden on the agency to respond within three working days "is, not infrequently, an onerous one," 4 the only exception to this general rule is codified at KRS 61.872(5), which expressly authorizes postponement of access beyond three business days only under specified conditions. 5
The unrefuted evidence presented establishes that no written response was issued on behalf of the Foundation until August 26, 2016; this inaction violated KRS 61.880(1). See 16-ORD-164, 16-ORD-165, 16-ORD-189, and 16-ORD-192, all of which involved the Center and the Foundation, and which determined the Foundation violated KRS 61.880(1) in failing to issue a written response within three business days. By failing to issue a written response to Ms. Howard's August 5, 2016, request within three business days of receipt and provide all existing responsive documents, or cite a statutory basis for denying access, in whole or in part, the Foundation violated KRS 61.880(1) as it did not invoke KRS 61.872(5); nor did the Foundation belatedly offer any explanation for the delay in response to Ms. Howard's appeal. See 10-ORD-201; 14-ORD-026. If any of the records being sought were "in active use, in storage or not otherwise available," the Foundation failed to specify which of these permissible reasons for delay applied or to what extent as required to discharge its duty under the Act.
The Attorney General must conclude that Ms. Howard did not receive "timely access" to records the Foundation agreed to provide as of August 26, 2016, in the absence of a legitimate detailed explanation of the cause for delay. See
Eplion v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011); 10-ORD-138 (Cabinet for Health and Family Services, "without adequate explanation for the delay pursuant to KRS 61.872(5)," subverted the intent of the Act in delaying access to personnel file of employee for more than two months); 13-ORD-053 (Library Board failed to provide timely access to records pertaining to building renovations); 14-ORD-040 (City of Taylorsville both violated KRS 61.872(5) in failing to provide a detailed explanation of the cause for delay and identify a specific date when requested invoices would be produced, and subverted the intent of the Act in delaying access for nearly two months). While a reasonable extension of time may have been justified, the record on appeal is devoid of any facts upon which to base such a finding. Based upon the foregoing, this office concludes that the Foundation violated the Act from a procedural standpoint in failing to issue a written response within three business days per KRS 61.880(1), and in delaying access to existing responsive documents ultimately disclosed as it did not invoke KRS 61.872(5) or satisfy the requirements of that provision.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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 must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The Foundation explained that several of the attachments to e-mails that were being disclosed "are in draft form" and thus withheld those records pursuant to KRS 61.878(1)(i) and (j) as "documents of a preliminary nature, such as those still in draft form and e-mail correspondence including analysis and recommendations regarding policy formulations, may be excluded under these provisions." Assuming the records, or portions thereof withheld on the bases of KRS 61.878(1)(i) and (j) were not ultimately adopted, in whole or in part, as the basis of any final action by the Foundation, those records would retain their preliminary character. See, for example, 12-ORD-055 and 15-ORD-189.
Quoting KRS 61.878(1)(l), incorporating KRE 503 and CR 26.02(3), the Foundation also redacted "portions of the responsive public records which reflect legal advice or client confidences that are protected by the attorney-client privilege and work product doctrine." Assuming the records withheld on the basis of the attorney-client privilege and/or the work product doctrine satisfied the necessary elements of KRE 503 or CR 26.02(3), the Foundation properly denied access. See, for example, 12-ORD-206 and 16-ORD-055 relative to KRE 503, and 07-ORD-147 and 15-ORD-157, relative to CR 26.02(3). Inasmuch as the Center's basis for initiating this appeal was procedural, and these redactions are not currently in dispute, this office assumes the Foundation applied the cited exceptions appropriately but makes no finding in this regard.
2 Ms. Howard specifically questioned the lack of documents regarding a "$ 1.9 million pledge to the . . . Foundation in May 2014" from Sapulpa Real Estate Holdings, LLC, evidence of which Ms. Howard had previously located in a "separate spreadsheet given pursuant to a separate records request." In her view, determining the value of the pledge, accepting it, and recording it "must have generated some related documents where it was at least mentioned." Mr. Saffer had previously offered a detailed explanation of the financial transaction and later provided a screen shot which sufficiently addressed the seeming lack of documents.
3 Because this office recently had occasion to summarize the relevant legal authorities in affirming the Foundation's disposition of a separate request as to nonexistent records in 16-ORD-206, rendered September 12, 2016, and this aspect of the appeal is no longer in dispute, this office refers the parties to pages 4-5 of that Open Records Decision for the substantive analysis. See Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (Ky. 2005); Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011).
4 02-ORD-165, p. 3.
5 For a thorough analysis of KRS 61.872(5), this office refers the parties to pages 3-4 of 16-ORD-206.