COMMONWEALTH OF KENTUCKY QFFIOE OF THE ATTORNEY GENERAL ANDY BESHEAR CAPITOL BUILDING, SUITE 118 ATTORNEY GENERAL - - 700 CAPETOL AVENUE FRANKFORT, KENTUCKY 40601 (502) 696?5300 FAX: (502) 564?2894 16-ORD-164 August 5, 2016 In re: Kentucky Center for Investigative Reporting/ University of Louisville Foundation 1 Summoryf University of Louisville Foundation violated KRS 61.880(1) by failing to respond to open records request in writing and within three business days. Foundation failed to meet its burden of proving that fulfilling the open records request placed an unreasonable burden on the Foundation and therefore improperly denied the request. Open Records Decision Kentucky Center for Investigative Reporting managing editor, Brendan McCarthy, appeals the University of Louisville Foundation?s 1belated denial of his February 8, 2016, request for: I 0 all Attestation and Disclosure Forms completed by Foundation staffers, contractors, and board members; and 0 all ethics disclosure forms and financial disclosure forms completed by Foundation staffers, contractors, and boardrmembers. 1 It is undisputed that the University of Louisville Foundation is a public agency Within the meaning of KRS and that access to its records is governed by the Kentucky Open Records Act. See, University of Louisville Foundation, Inc. 1). Cape Publications, Inc, 2003 WL 22748265 (Ky. App. 2003) (unpublished). AN EQUAL OPPORTUNITY EMPLOYER 16-ORD-164 Page 2 Relying on KRS the Foundation denied Mr. McCarthy?s request on March 2, 2016. The FOundation asserted that his requests were unreasonably burdensome ?because they are overly broad and blanket in nature.? In support, it argued that responding to the request "would require the Foundation to locate records in a number of offices, warehouses, and storage facilities covering a significant number of ?staffers,?. involving a significant number of board members, thousands of contractors, and spanning a period of just under forty-six years.? Following discussions with Foundation records custodian, Kenyatta Martin, Mr. McCarthy submitted an amended request that specified only reSponsive records for "the last four years.? Mr. McCarthy asserts, and the Foundation does not dispute, that his amended request, Which is undated, was Submitted in mid-March?- Further, Mr. McCarthy asserts, and the Foundation does not dispute, that he emailed Ms. Martin on April 21, and May 11, 2016, to ascertain the status of his amended request. He received no response. On May 23, 2016, he contacted Foundation counsel, David Saffer, who asked that he "recap . . . the outstanding requests you have so we can track them down.? Mr. McCarthy provided the requested summary and followed up four days later by reminding the Foundation that it had not yet responded to his amended request submitted three months earlier. At this point, Mr. McCarthy asserts and the Foundation does not dispute, all communication from the Foundation ceased. On appeal, the Foundation asserts that, ?[e]ven as amended, [its] position remained that the requests placed an unreasonable burden on the Foundation, thus permitting it to deny Mr. McCarthy?s requests . . . As noted, in its denial to his original request, the Foundation advised Mr. McCarthy that: The Foundation was founded May 28, 1970. Responding to your request would require the Foundation to locate records in a number of offices, warehouses, and storage facilities covering a significant number of ?staffers,? involving a sigruficant number of board members, thousands of contractors, and spanning a period of just under forty?six years. 2 Mr. McCarthy asked that the Foundation "provide these forms for the last 4 years to the present.? Page 3 The Foundation did not respond to Mr. McCarthy?s amended request, much less 7 elaborate on the burden?irnposed by producing records for a four year, rather than a forty?six year, period. Having failed to do so, the Foundation'did not prove, by clear and convincing evidence, that producing records in response to Mr. McCarthy?s amended request constituted an unreasonable burden. Thereafter, the Foundation improperly relied on KRS 61.872(6) in denying his request. 1 The University of Louisville Foundation violated KRS 61.880(1) by failing to respond to Mr. McCarthy?s March 2016 amended request for attestation and disclosure forms, as well as ethics disclosure and financial disclosure forms, "for the last four years to? the date of his request. KRS 61.880(1) mandates a written response to an open records request within three business days of receipt. The Foundation cannot extend the terms of its response to Mr. McCarthy?s original request to his amended request, especially when the basis for denial is an unreasonable burden and the second request is narrowed from forty-six years to four years. Thus, the Foundation responded to his original request by minimally describing the burden associated with production of forty-six years of responsive records. The Foundation did not respond, in any fashion, to Mr. McCarthy?s March 2016 request until this dispute was appealed to the Office of the Attorney General. In its response to Mr. McCarthy?s appeal, the Foundation asserted that, ?[e]ven as amended,? his request "placed an unreasonable burden on the Foundation.? With specific reference to Mr. McCarthy?s March 2016 request for attestation and disclosure forms, as Well as ethics and financial disclosure forms, for the preceding four years, the record On appeal is devoid of evidence, clear and convincing or otherwise, that the Foundation properly invoked, albeit, after Mr. McCarthy initiated this appeal, KRS Neither Mr. McCarthy, nor this office, has been presented with a good faith estimate of the number of existing attestation and disclosure forms, and ethics and financial disclosure forms, that are responsive to the request, the difficulties associatedwith retrieval, and Whether they contain both exempt and nonexempt information, compelling review and redaction of each form before disclosure. 16-ORD-164 Page 4 In Commonwealth Chestnut, 250 655, 664 (Ky. 2008), the Kentucky Supreme Court recognized that "a public agency refusing to comply with an open records request on this unreasonable?burden basis faces a high proof threshold since the agency must show the existence of unreasonable burden ?by clear and convincing evidence.? The Foundation presents no evidence of unreasonable burden as it relates to Mr. McCarthy?s amended request. ?[T]he obvious fact that complying with an open records request Will consume both time and manpower is, standing alone, not sufficiently clear and convincing evidence of an unreasonable burden.? Chestnut, 250 at 665. We therefore find that the University of Louisville Foundation violated KRS 61.880(1) in failing to respond to Mr. McCarthy?s March 2016 amended request and improperly denied that request under KRS Accord, (City failed to present clear and convincing evidence of an unreasonable burden in producing public records). Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding. Andy Beshear Attorney General 69W Amye L. Bensenhaver Assistant Attorney General #276 Distributed to: Brendan McCarthy Kenyatta Martin David E. Saifer COMMONWEALTH OF KENTUCKY OFFICE OF THE ATTORNEY GENERAL ANDY BESHEAR - CAPITOL BUILDING, SUITE 1 18 700 CAPITOL AVENUE AWORNEY GENERAL FRANKEORT, KENTUCKY 40601 (502) 696?5300 FAX: (502) 564-2894 16-ORD-165 August 5, 2016 In re: Kentucky Center for Investigative Reporting/ University of Louisville Foundation Summary: Decision relying on and holding that University of Louisville Foundation violated KRS 61.880(1) by failing to respond to open records requestin writing and within three business days. Foundation failed to meet its burden of proving that fulfilling the open records request placed an unreasonable burden on the Foundation and therefore improperly denied the request. Open Records Decision This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the University of Louisville Foundation violated KRS 61.880(1) in failing to respond to Kentucky Center for Investigative Reporting managing editor, Brenda McCarthy?s, February 8, 2016, request for ?all year?end payroll lists, documents, or forms indicating pay to of Foundation staffers employees from February 1, 2015, through the present date.? Relying on KRS the Foundation denied Nir. McCarthy?s request, asserting that the request was "overly broad and blanket in nature? on March 2, 2016. The Foundation did not explain, then or now, how his request for just over one year?s payroll records "would require [it] to locate records in a number of offices, warehouses, and storage facilities covering a significant number of ?staffers,? involving a significant number of AN EQUAL OPPORTUNITY EMPLOYER 16-ORD-165 Page 2 board members, thousands of Contractors, and spanning a period of just under forty-six years.? In this office rejected a similar claim advanced by the Foundation in denying Mr. McCarthy?s request for attestation and disclosure forms, as well as ethics and financial disclosure forms, for a four year period. A copy of that open records decision is attached and its reasoning adopted as if set forth in full. The Foundation presents no evidence of an unreasonable burden as it relates to producing payroll records for a period of one year. Its reliance on KRS 61.872(6) was misplaced and its failure to produce the payroll records constituted a violation of the Open Records Act. So, too, did its failure to address this request in its untimely response to Mr. McCarthy?s request. Having failed to respond to that request in writing and within three business days, and to meet its statutorily assigned burden1 of proving by clear and convincing evidence2 that production of payroll records for a period of just over one year imposed an unreasonable burden, we find that the University of Louisville Foundation A violated the Open Records Act in denying Mr. McCarthy?s request. Either party may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding. Andy Beshear Attorney General is? .. Amye L. Bensel?lhaver Assistant Attorney General #277 1 ms 2KRs Page 3 Distributed to: Brendan McCarthy Kenyatta Martin David E. Saffer