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.

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