Identification of donors to public university foundation in open records request: CAPE PUBLICATIONS, INC. d/b/a COURIER JOURNAL v. UNIVERSITY OF LOUISVILLE FOUNDATION, INC. (SC 8/21/2008)

CAPE PUBLICATIONS, INC. d/b/a COURIER JOURNAL v. UNIVERSITY OF LOUISVILLE FOUNDATION, INC.
GOVERNMENT:  Open records request and identification of donors to foundation disclosed
2005-SC-000454-DG.pdf
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART
OPINION BY CUNNINGHAM; MINTON CONCURS IN PART BUT ALSO DISSENTS IN PART; SCOTT CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION; VENTERS NOT SITTING
FROM JEFFERSON COUNTY
DATE RENDERED: 8/21/2008; 9/17/2008

The Courier-Journal newspaper appeals a decision of the Court of Appeals denying an open records request directed to the University of Louisville Foundation, Inc. (the Foundation).

This Court granted discretionary review to determine whether the Courier-Journal has a right to access records of donations made to the Foundation under Kentucky’s Open Records Act.  The decision of the Court of Appeals is affirmed in part and reversed in part.

The genesis of this case arose when the Courier-Journal made an open records request of the Foundation, a fundraising arm of the University of Louisville. The Courier-Journal sought disclosure of the identities of certain donors and the amounts of such donations.  The Foundation rejected the request, claiming that it is a private corporation not subject to Kentucky’s Open Records Act, KRS 61 .870 et seq. The Foundation also rejected the request on the grounds that it would be an unwarranted invasion of the personal privacy of each of these donors . The Courier-Journal filed suit in the Jefferson Circuit Court pursuant to KRS 61 .882 .

Kentucky’s Open Records Act, KRS 61 .871 et seq ., seeks to ensure the free and open examination of public records. This statute, however, is not without its limits . KRS 61 .878 sets forth certain types of documents that are exempt from public inspection absent a valid court order. Included within this exemption are "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."

In addressing the privacy interests of the Foundation’s donors, a distinction must be drawn between those donors who requested anonymity and those who did not. Of the 47,000 donors to the Foundation whose identities have not previously been publicized, 62 specifically requested that their identities be withheld.

Many of these 62 persons demonstrated their desire for anonymity by checking a box on the Foundation’s donor form which specifically asks whether the donation is "anonymous." Others directly asked the Foundation to withhold their identities. Five requested anonymity verbally.

The SC agreed with the trial court that the non-anonymous donors had a very minimal expectation of privacy in making the donations. Moreover, though personal in nature, the information sought by the Courier-Journal does not involve the revelation of intensely private information, such as personal income or medical history.

The public, on the other hand, has a legitimate interest in the amounts and sources of monies donated to the Foundation, which ultimately fund the University.

Particularly, in light of the donors’ lowered expectations of privacy in this circumstance, the SC did not believe that disclosure of these non-anonymous donors’ identities would constitute a "clearly unwarranted invasion of personal privacy" within the meaning of the Open Records Act.

Therefore, the SC reversed the Court of Appeals as to the group of donors not seeking anonymity.

The 62 donors who requested anonymity, however, are positioned differently than the remaining donors, and with regard to them the SC held the names of the Foundation donors are subject to the disclosure requirement of KRS 61 .871 . Excepted, however, are those 62 persons who requested anonymity and who made donations to the Foundation prior to it being declared a public entity.

Accordingly, the SC reversed the Court of Appeals in part and hereby reinstate the order of the Jefferson Circuit Court.

Noble, J., and Special Justices, F. Kenneth Conliffe and David V. Kramer, concur. Minton, C.J ., concurs in part because he agrees with the majority’s conclusion that the donors who did not request anonymity should not receive it; but he dissents from the majority’s conclusion that any donors should receive anonymity because his examination of the law has caused him to conclude that there cannot be an anonymous donation to a public institution .

Scott, J ., concurs in part and dissents in part by separate opinion. Venters, J., not sitting.

Digested by Michael Stevens

Briefs:

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

COA DECISION: 2003CA2040

Digested by Michael Stevens

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