Tuesday, November 8, 2016

UofL on losing side of another Beshear opinion

Attorney General Andy Beshear issued yet another opinion against the University of Louisville.

On Sept. 22, Beshear issued an opinion in an appeal from the Kentucky Center for Investigative Reporting about the Open Records Act in In re: Kentucky Center for Investigative Reporting/University of Louisville, 16-ORD-210.

Brendan McCarthy, a managing editor with the Center, requested from UofL on Dec. 24, 2015,  minutes, agendas, staff list and membership documents for various programs and boards.

On Jan 8, 2016, the university acknowledged receipt of the request and expressed concerns about the volume of records and the time needed to identify and then review the documents.

On Jan. 12, McCarthy asked the university if it had any idea the actual scope of the request, so that he could possibly tailor the scope of the request, thus shrinking the number of responsive records. Two days later he sent a “winnowed down list, in order of importance.”

He then followed up the smaller request on Feb. 5, to which UofL stated some records were received but more were expected to come, and the request was still quiet voluminous.

At the six-month mark, on June 30, 2016, McCarthy again requested a status of his request. On July 1, UofL confirmed it owed McCarthy a response and would do its best to get the records to him the following week.

McCarthy appealed on Aug. 18 for numerous reasons, namely the request had not been filled within eight months after the request. He also said UofL has failed to cite what actions it has taken to fulfill the request or provide an adequate timeline for production of the records.

The university responded by saying the appeal should not be considered because it provided McCarthy records on a rolling basis, and the delay on the second request was because of the sheer volume of the first.

Beshear found that even if the response was timely, it was still deficient because it failed to provide McCarthy with access to existing records within that period or cite applicable statutes to give an extension and cited no exemptions.

He stated that UofL violated the Open Records Act by failing to provide a timely response and provide access to the requested documents, nor invoke the need for a delay by providing a thorough explanation of why it was necessary.

The vague reasons for the delay and sparse estimates of time were insufficient, because KRS 61.872(5) requires a detailed explanation and the place, time and earliest date at which records would be available.

Due to the University not denying any portion of the second request by McCarthy, Beshear determined that his office has no basis upon which to find a substantive violation of the Act by UofL at the point the opinion was issued. 

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