Wednesday, November 9, 2016

UofL Foundation wrongly claimed it had no records responsive to request, violated law

The University of Louisville Foundation violated the Open Records Act when it improperly claimed it had no records that were requested.

On Sept. 12, Attorney General Beshear issued an opinion in the appeal of an Open Records denial in In re: Brendan McCarthy/University of Louisville Foundation, Inc., 16-ORD-204.

McCarthy requested documents about funds used by the foundation placed outside the continental United States on Dec. 17, 2015.

The foundation responded on Dec. 23, 2015 denying it had possession of requested records. McCarthy appealed on Aug. 10, 2016.

In the appeal, McCarthy showed that the foundation’s tax forms illustrated extensive investments in Europe, Central America and the Caribbean, and that the duty under the Open Records Act is not relieved by putting such records in another location.

In its appeal, the foundation cited KRS 61.878(1)(c)(1), an exemption for records that are confidential and proprietary, which would, if made public, would be unfair commercial advantage. It thereby gave records that were redacted pursuant to the cited section of the Act.

The attorney for the foundation argued since records were given, though redacted, the appeal was moot, but Beshear felt differently since the records were not released in their entirety.

Beshear found that the initial response of the foundation having no responsive records was a violation of the Open Records Act. For the redactions and exemption claim, Beshear’s office has not received a description of the redactions or an explanation of how the exemptions apply to the redactions.

Due to the failure to properly explain the exemption as to the redactions, Beshear found that the foundation failed to meet its burden under the Open Records Act and its handling of McCarthy’s request was a violation as well.

UofL Foundation failed to meet burden on illustrating why it was proper to deny a request

The Attorney General's Office issued two opinions on Aug. 5 relating to the University of Louisville Foundation's lack of response to a request for documents. 

First, In re: Kentucky Center for Investigative Reporting/University of Louisville Foundation, 16-ORD-164, The Kentucky Center for Investigative Reporting’s managing editor Brendan McCarthy requested attestation and disclosure forms from people associated with the University of Louisville Foundation and ethnic and financial disclosure forms as well on Feb. 8, 2016. 

On March 2, the foundation denied McCarthy’s request. The foundation asserted that it was a burdensome request because it was overly broad and involved a lot of work to find records that were scattered and covered more than 46 years. 

McCarthy resubmitted his request, seeking the documents from the past four years. McCarthy emailed the foundation’s records custodian, Kenyatta Martin, on April 21 and May 11 to figure out the status of his amended request. On May 23, McCarthy spoke with the foundation’s counsel, David Saffer, who asked for a recap to help track it down. He followed up four days later, then all communications ceased. 

The foundation still contended the amended request was burdensome and denied the request. By not elaborating on why the four-year period was still burdensome, compared to the initial 46-year request, the attorney general found that the foundation did not fulfill its burden in proving, by clear and convincing evidence, that producing the records was unreasonably burdensome, in able to deny the request. 

Beshear also stated that the foundation failed to fulfill the three-day response requirement set forth in the law, taking a month to respond to the initial request and never responded to the amended four-year request. 

The AG cites Commonwealth v. Chestnut, 250 S.W.3d 655, 664 (Ky. 2008) to show that the Kentucky Supreme Court recognized that there is a high burden of proof on an agency that is refusing to comply with an Open Records Request, as that agency must show through clear and convincing evidence that the request is unreasonably burdensome. Since the Foundation presented no evidence as to why the four years was unreasonably burdensome, the Foundation violated the Act both in response time and substantially by not meeting its burden of proof. 

In In re: Kentucky Center for Investigative Reporting/University of Louisville Foundation, 16-ORD-165, Beshear quickly reiterated the facts, based on 16-ORD-164, and found that the foundation again violated the Act by not replying to the initial Feb. 8 request in a timely manner, by taking nearly a month to respond. He also stated that it did not meet the burden of proof in showing that the request was too burdensome to respond to. 

Energy Cabinet withheld records based on incorrect exemptions

The Energy and Environment Cabinet violated parts of the Open Records Act by withholding internal emails and parts of emails based on incorrect exemptions.

On Sept. 21, 2016, the Office of Attorney General Andy Beshear issued an opinion in the Open Records appeal of In re: Cathy Goguen/Energy and Environment Cabinet, 16-ORD-208.

Goguen submitted an Open Records request to the cabinet on June 24 stating a previous request had not been received by her in regard to a complaint and report related to the Americans with Disabilities Act.

Five days later she sent a follow-up email to the cabinet requesting a status update on the requested documents relating to email records or reports to a Nina Hockensmith from various persons.

On June 29, the day of the follow-up email, the cabinet responded. It stated it was still conducting search for records, stating officials anticipated having the records obtained and ready by July 8. Immediately Goguen replied that her first request was in May and she had not received that request yet, and added to her request.

Goguen also appealed to Beshear’s office on June 29 as well, stating the records were not provided in a timely manner and it had not released all records.

On July 11,  the cabinet said it had responded to Open Records request from Goguen 11 times since April in relation to 19 requests, with 312 documents provided to her since April. It also stated that it produced records to Goguen on June 30, and thus requested the appeal be dismissed as moot.

The cabinet attached an email dated June 30 to its response, where it stated that documents would be provided via a secure internet-based website where Goguen must log in to view the non-exempt records, but that 115 were exempt under KRS 61.872(1)(i) and (j), which are the internal and attorney-client privilege exceptions.

Other emails were attached to the response.

Beshear’s office requested to view the emails in question and asked the agency if any final action had been taken. The cabinet responded with the documents and noted that a letter from Hockensmith stated there was no ADA violation and no further action would be taken.

After reviewing emails claimed to be exempt under the internal-preliminary exemption, Beshear found that many of them consisted solely of factual communications, rather than recommendations or opinions. Thus they do not fall within the exemption, and the cabinet violated the Open Records Act in withholding them.

Beshear found that the parts of the emails that contained legal advice were exempt, but the emails with information that was available before being sent to the attorney were not exempt as privileged materials, again meaning the cabinet violated the Open Records Act.