Request By:
Mr. M. Fred Mullinax
President
Alice Lloyd College
Pippa Passes, Kentucky 41844
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Benny Ray Bailey has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect various documents in the custody of Alice Lloyd College.
In a letter to you, dated August 16, 1988, Mr. Bailey requested that he be permitted to inspect the minutes of all meetings of the Alice Lloyd College Board of Trustees during 1987 and 1988.
You replied to Mr. Bailey in a letter dated August 18, 1988. You wrote him that, "I have been advised by the College's legal counsel that Alice Lloyd College is not subject to the Kentucky Open Records Law and thereby respectfully decline to produce any records."
In his letter of appeal to this office Mr. Bailey refers to KRS 61.870(1) which provides in part that the term "public agency" includes any entity which derives at least 25% of its funds from state or local authority. He asks whether monies from the Kentucky Higher Education Assistance Authority granted to private colleges constitute monies from a state authority and, if so, must private colleges who receive at least 25% of their funds from KHEAA comply with the Kentucky Open Records Act.
The undersigned Assistant Attorney General talked by telephone on August 28, 1988, with Mr. Roger B. Tharp of the Kentucky Higher Education Assistance Authority. He advised that the Authority utilizes both state and federal funds in its assistance programs. The key factor, however, is that while the authority makes grants and loans to students of private colleges it does not make grants and loans to the private colleges themselves.
OPINION OF THE ATTORNEY GENERAL
Generally, a private entity such as a private college is not a public agency under the terms and provisions of the Open Records Act. See OAG 81-377, a copy of which is enclosed.
While KRS 61.870(1) does provide in part that the phrase "public agency" includes a private organization that receives at least 25% of its funds from state or local authority, no evidence has been introduced relative to this appeal that Alice Lloyd College is a "public agency" as the term is defined in the statute. The Kentucky Higher Education Assistance Authority may make some grants and loans to students attending Alice Lloyd College but it does not make grants and loans to Alice Lloyd College.
Thus, having been advised that the private college does not receive any grants or loans from the Kentucky Higher Education Assistance Authority, there is no evidence that the college is a "public agency" within the meaning of KRS 61.870 (1). The college properly denied the request to inspect its records and documents as it is not subject to the terms and provisions of the Kentucky Open Records Act.
As required by statute, a copy of this opinion is being mailed to the appealing party, Mr. Benny Ray Bailey, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.