Request By:
Mr. Gary S. Webb
Editorial Department
The Kentucky Post
421 Madison Avenue
Covington, Kentucky 41011
Opinion
Opinion By: Steven L. Beshear
You have requested the Office of the Attorney General to reconsider OAG 82-27. That opinion considered an appeal to our office with regard to access to records of the Kentucky Export Resources Authority, Inc. Based upon the records and information available to us at that time, we concluded that Kentucky Export Resources Authority, Inc. was a nonstock, nonprofit corporation which did not receive as much as 25% of its funding from state or local authorities. See KRS 61.870(1). It was our belief your request to Kentucky Export Resources Authority, Inc. had been properly denied in that your request to inspect records had not been directed to a public agency under the Open Records Law.
With your letter seeking a reconsideration of OAG 82-27, you provided copies of documents containing information which you felt supported your position that Kentucky Export Resources Authority, Inc. was in fact financially supported in excess of 25% by state funds. Additional information has been garnered from telephone calls to, as well as from personal conferences with, Mr. David D. Drake, Secretary, Kentucky Department of Energy. It is now believed we have reviewed all facets of the relationship between Kentucky Export Resources Authority, Inc. and the Kentucky Department of Energy so as to be able to reconsider OAG 82-27 as you requested.
Based upon all of the information gathered, this office is persuaded that the conclusions expressed in OAG 82-27 are in error, and therefore OAG 82-27 is hereby withdrawn and replaced by this opinion.
The Kentucky Export Resources Authority, Inc. was formed on March 3, 1981, as a nonstock, nonprofit corporation under the provisions of KRS Chapter 273. This corporation has performed a function relative to export coal marketing with the coal exported coming from small coal operations in Kentucky. Although monies from the Appalachian Regional Commission were involved in the corporation's activities, it is now apparent that the corporation was run by Kentucky Department of Energy personnel and that the operating expenses of the corporation were primarily paid for with Kentucky Department of Energy funds. This relationship existed from the date the Kentucky Export Resources Authority, Inc. was incorporated until January 15, 1982. At that time, the Authority became self-sufficient and its personnel were removed from the payroll of the Kentucky Department of Energy.
This being the situation, we are of the opinion that Kentucky Export Resources Authority, Inc. was a public agency as defined in KRS 61.870(1) from March 3, 1981, until January 15, 1982, and that your request to have access to records of the Authority was improperly denied. Therefore, unless otherwise subject to lawful exemption status, it is the opinion of this office that you should be provided access to the records of Kentucky Export Resources Authority, Inc. which you may desire from March 3, 1981, through January 15, 1982.
Because as of January 15, 1982, the Kentucky Department of Energy's previous operational and funding relationship with the Authority was terminated, there is no basis upon which to conclude that the Authority subsequent to that time is receiving any funding from state or local authorities. Therefore, unless that situation should change, the Authority would no longer be a public agency after January 15, 1982.