Wednesday, November 9, 2016

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. 

No comments:

Post a Comment