Request By:
Gary S. Webb
The Kentucky Post
421 Madison Avenue
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
By letter dated September 7, 1981, you requested Mr. William B. Sturgill, Secretary of Energy, to provide you access to certain described papers. The pertinent part of your request is stated as follows:
"Pursuant to KRS 61.872 et seq, I am requesting access to all records, papers, maps, photographs, cards, letters, tapes, minutes, memorandae, receipts, contracts, vouchers and any other documentary material prepared, owned, used, in the possession of, or retained by the Kentucky Export Resources Authority, Inc., relating specifically to the Big Sandy Coal Producers Association, Inc., Clean Coal Terminals, Inc., and the Italian firms ENEL, ENI and FINSIDER. This request also seeks access to any document or abstract thereof pertaining to an individual named Paul Soros and Soros and Associates, or Soros and Roman.
This request is being made under the Open Records Act in the belief that the Kentucky Export Resources Authority, Inc., is a public agency as defined in KRS 61.870(1), and that its directors are, or were at the time of incorporation, state officers as defined in KRS 61.870(1).
Therefore, this request also seeks access to any and all of the abovementioned documents that may be in the possession of, or under the control of, any individual officer of the corporation, whether a state officer or not."
Upon receipt of your request Mr. Sturgill referred the matter to the attorney for the Kentucky Export Resources Authority, Inc., the Hon. Bert T. Combs, who answered you by letter dated September 14, 1981. One of the reasons Mr. Combs gave on behalf of Mr. Sturgill and the Kentucky Export Resources Authority, Inc. denying access to the described documents was:
"The Kentucky Export Resources Authority, Inc. is a non-profit corporation incorporated pursuant to Chapter 273 of the Kentucky Revised Statutes and does not receive any money from state or local authorities. "
After you received Mr. Combs' reply you appealed to the Attorney General by letter dated September 16, 1981 stating:
"I believe that the KERA is a public agency as defined, because it is funded both by the Commonwealth and the Appalachian Regional Commission, which derives part of its funding from the Commonwealth."
In order to settle the factual question of whether KERA received funds from any state or local authority we wrote Mr. Sturgill on October 28, 1981 asking him to advise the Attorney General as to whether the Kentucky Export Resources Authority, Inc. received as much as 25% of its funding from state or local authority. Mr. Combs responded to that letter on behalf of Mr. Sturgill stating again that the Kentucky Export Resources Authority, Inc. was formed on March 3, 1981 as a non-stock, non-profit corporation under the provisions of KRS Chapter 273; that it is not a department, division, bureau, board, commission, or authority of state or local government; that he was advised that all of its funding is derived from a grant of the Appalachian Regional Commission organized under Title 40 United States Code, Appendix § 101; that it is not a state or local authority within the meaning of KRS 61.870; that it does not receive as much as 25% of its funding from state or local authority.
There are two legal thresholds which must be crossed by a person seeking to compel access to documents under the Open Records Law, KRS 61.870 to 61.884; (1) the custodian of the records must be a "public agency" as defined in KRS 61.870(1), and (2) the documents to be inspected must be "public records" as defined in subsection (2) of the same statute. Unless and until those thresholds are crossed it is not necessary to consider the provisions of the law pertaining to exemptions (KRS 61.878) or pertaining to an unreasonable burden in producing voluminous public records (KRS 61.872(5)). We have made repeated inquiries and received repeated assurances that the non-stock, non-profit corporation, KERA, Inc., does not receive as much as 25% of its funding from state or local authorities. It is our belief that the first threshold has not been crossed and, therefore, you have not made a request to inspect the records of a public agency under the Open Records Law.
Even though you allege that certain state officers are involved in the Kentucky Export Resources Authority, Inc. as incorporators the corporation must be treated as a legal entity and a demand on the state officers to produce corporation documents for inspection cannot be given legal force. KRS 61.870(2) includes the following:
"Public Records shall not include any records owned by a private person or corporation that are not related to functions, activities, programs or operations funded by state or local authority. "
Since you have not directed your request to a public agency which is subject to the Open Records Law it is not necessary for us to decide the status of the described records. You have not alleged that they are other than records of the corporation. Your request does not state that the records are records of the Department of Energy or any other state department or office.
Upon the reasons stated above we conclude that no public agency is involved in your request to inspect the records of the Kentucky Export Resources Authority, Inc. and for that reason this opinion is not being directed to any state agency or state officer.