Request By:
Sandra Mendez-Dawahare, Esq.
General Counsel
Associate Superintendent
Legal Services
Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Mark R. Chellgren has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records. He has described the records in question as follows:
"All financial records maintained by the Kentucky Education Foundation, Inc. from its creation to the present. Also, all records of financial contributions made by the Department to the Foundation, including, but not limited to, grants, in-kind services, public employees' contributions, personal service contracts for the Foundation's benefit and similar use of public resources."
This office had advised Mr. Chellgren in a letter dated October 3, 1984, that according to information obtained from the Secretary of State's Office, the Kentucky Educational Foundation, Inc. is a nonstock, nonprofit corporation utilizing powers conferred by KRS Chapter 273 and organized and operated exclusively for charitable, scientific, literary and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code, as amended. It is, therefore, not a public agency under KRS 61.870. Mr. Chellgren maintains, however, that the Department of Education's contributions to the Foundation may constitute a significant portion of the Foundation's financing and may bring it within the definition of a "public agency" as a body which derives at least 25 percent of its funds from state or local authority. See KRS 61.870(1).
You replied to Mr. Chellgren in a letter dated October 29, 1984 stating that the Kentucky Education Foundation is a private nonstock corporation which seeks financial assistance from the private sector to improve public education. You said it is not a department or office of the State Department of Education and the Department of Education does not have the documents sought by Mr. Chellgren.
In an attempt to secure additional information relative to the Kentucky Educational Foundation, Inc. and its relationship to and with the State Department of Education, this office wrote you a letter on November 12, 1984 posing several questions and seeking certain information. You supplied this office with a letter dated December 4, 1984, signed by Alice McDonald, Superintendent of Public Instruction, in response to our letter of November 12, 1984. We also have discussed this matter by telephone with Laramie L. Leatherman, Esq., legal counsel to and Vice President of the Kentucky Educational Foundation, Inc.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that the State Department of Education acted in conformity with the Open Records Law relative to the request to inspect documents of the Kentucky Educational Foundation, Inc. as the Foundation is not a public agency and does not appear to derive at least 25 percent of its funds from state or local authority. It is also the opinion of the Attorney General that the State Department of Education is required to release whatever records it has relative to actual contributions, expenditures and services it has rendered to the Kentucky Educational Foundation, Inc.
As previously stated the records in the Secretary of State's Office indicate that the Kentucky Educational Foundation, Inc. is a nonstock, nonprofit corporation utilizing powers conferred by KRS Chapter 273 and organized and operated exclusively for charitable, scientific, literary and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code, as amended. Other sources reveal that the Kentucky Educational Foundation, Inc. has for its primary purposes the raising of funds and the making of grants to assist the Department of Education, and possibly other entities, in providing educationally oriented programs.
The Foundation has no employees and it has no specific in-place programs. Persons and firms interested in education donate both funds and time in support of its general objectives. Its contributors and benefactors have some ideas relative to education and the Foundation's Board makes grants after receiving and reviewing program proposals from applicants. The Foundation is frequently receptive to proposals submitted by the Department of Education because the Department has the capability to develop and administer programs and to handle them on a state-wide basis. However, the Department of Education does not determine what programs the Foundation will financially support and the Department does not control the Foundation in any way. In all probability the Foundation would at least consider applications from sources other than the Department of Education.
Our findings indicate that while employees of the State Department of Education may be expending their time developing programs and projects for presentation to the Foundation for its approval or disapproval, these employees are not working for the Foundation. The Foundation appears to function as do similar types of organizations whose objective is the financial support of programs and projects deemed worthy of the purposes for which they were established. It may be that the Department of Education has not sufficiently emphasized the distinction between working for the Foundation and working on programs and projects for presentation to the Foundation's Board with a request for financial assistance from the Foundation.
Our findings further indicate that the actual expenditures of the State Department of Education for the Foundation are minimal. Those expenditures of the Department would not appear to be of such an amount as to reach the figure of 25 percent of the Foundation's funds from governmental sources [(KRS 61.870(1)]. Nevertheless, whatever these expenditures may be, the State Department of Education should make the figures available for public inspection.
For example, there appears to have been some expenditure of funds for meeting rooms and refrents for four meetings of the Foundation's Board of Directors. There may have been some instances where personnel of the Department were actually used for activities directly associated with the Foundation itself rather than in the preparation of plans and programs to be submitted to the Foundation, along with requests for financial support for those plans, projects and programs from the Foundation. In addition, there is the matter of the personal service contract involving Dr. Regina M. J. Kyle which while entered into before the Kentucky Educational Foundation, Inc. was created, involved in part some kind of an endeavor to figure out a way to secure money for educational purposes from private sources.
Thus, the request to inspect public records under the Open Records Law was properly denied to the extent that the request related to documents of the Kentucky Educational Foundation, Inc. as the Foundation is not a public agency and does not appear to derive at least 25 percent of its funds from state or local authority. The request to inspect public records was improperly denied to the extent that the request related to records of the State Department of Education concerning the actual contributions, expenditures and services rendered by the Department to the Kentucky Educational Foundation, Inc., as a public agency is involved.
As required by statute, a copy of this opinion is being sent to the requesting party and either party has the right to challenge it in court pursuant to KRS 61.880(5).