Request By:
L. Rogers Wells, Jr., Secretary,
Finance and Administration Cabinet
Capitol Annex
Frankfort, Kentucky 40601J. Patrick Abell, General Counsel
Office of The Governor
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General, (502) 564-4019
John Winn Miller, Frankfort Bureau Chief of the Lexington Herald-Leader has appealed, "Pursuant to KRS 61.880(4)" denials by your respective agencies of access to "records involving private donations to official 1988 Kentucky Derby Festivities. "
In connection with his appeal, Mr. Miller submitted a five page letter dated November 23, 1988, stating his appeal. Mr. Miller's letter of appeal was accompanied by fourteen attachments, itemized below to establish the record of materials reviewed in connection with this appeal. One additional item was offered to this office in connection with this appeal. It is itemized as item 15 in the list below.
(1) 9/13/88 letter to L. Rogers Wells, Jr., Secretary, Finance and Administration Cabinet;
(2) 9/15/88 letter to Gov. Wilkinson;
(3) 9/19/88 letter to J. Patrick Abell, Legal Liaison Governor's Office;
(4) 9/27/88 letter to L Rogers Wells, Jr., Secretary, Finance and Administration Cabinet;
(5) 9/27/88 letter of J. Patrick Abell to Mr. Winn Miller (response to 9/15/88 open records request);
(6) 9/27/88 letter of J. Patrick Abell to Mr. Winn Miller; (response to 9/19/88 open records request)
(7) 10/6/88 letter to L. Rogers Wells, Jr., Secretary, Finance and Administration Cabinet;
(8) 10/10/88 L. Rogers Wells, Jr., letter to Miller (response to 10/6/88 request);
(9) 10/11/88 J. Patrick Abell letter to Miller (response to 10/6/88 request for various public records, etc.)
(10) 10/11/88 J. Patrick Abell letter to Miller (response to 10/6/88 request for documents relating to donations above $100, etc.)
(11) 10/20/88 Letter of V. Thomas Fryman, Jr., (Greenbaum, Doll & McDonald) on behalf of Lexington Herald-Leader Co., to L. Rogers Wells, Jr., Secretary, Finance and Administration Cabinet;
(12) 11/9/99 Charles Wickliffe, General Counsel, letter to V. Thomas Fryman, Esq.
(13) 5/11/88 copy of "Lundy's" invoice ($20,582.00).
(14) 10/11/88 J. Patrick Abell, General Counsel letter to Miller
(15) 12/7/88 Letter, Wickliffe, General Counsel, to Gerhard.
In substance, it appears from the various items submitted, that, in several separate requests to the Governor's Office and the Finance and Administration Cabinet, Mr. Miller requested access to (1) records regarding state expenditures for certain state-sponsored festivities related to the 1988 Kentucky Derby, and, (2) records concerning certain private contributions, and payments from contributed funds, for items provided under state auspices in connection with such festivities (e.g., a railroad train used by the Governor and state guests to travel from Frankfort to Louisville and to return to Frankfort).
The Governor's Office, in various responses, indicated in substance that it did not have, and had not had, any of the records sought. See for example, Abell letters to Mr. Winn Miller, September 27, 1988.
The Finance and Administration Cabinet, in a response dated October 10, 1988 (over the signature of L. Rogers Wells, Jr.,), indicated that ". . . every document in the cabinet concerning the expenditure of public funds for the 1988 Kentucky Derby has been made available to the . . . Herald-Leader." [Emphasis added.]
Regarding donations or disbursement of private funds for the festivities in question, the Cabinet said: "The Finance and Administration Cabinet does not have any documents regarding private expenditures. " The Cabinet's letter stated further that ". . . groups that donated services or money to the privately funded events during the 1988 Kentucky Derby" . . . . have not ". . . made any records available to the Finance and Administration Cabinet, nor are they required to turn over their records to this agency."
Mr. Miller's letter of appeal sets out several factual claims he indicates are "reasons to believe that the agencies are not being forthcoming, that they do have access to the documents, and that they know who is the rightful custodian." Mr. Miller indicates "I believe they may be hiding behind the fact that they do not now physically have the documents in their offices."
OPINION OF THE ATTORNEY GENERAL
The Attorney General's role in an "Open Records Appeal" is to render an opinion regarding whether an agency, in denying inspection of a publicrecord, "acted consistent with the provisions of KRS 61.870 to 61.884." See KRS 61.880(2) and (3).
This Opinion, involving an appeal of a possible denial of inspection of public records, addresses only matters related to the Kentucky's open records laws. Whether public documentation of private donations for functions carried out under state auspices is required, is a question not addressed by Kentucky's open records laws.
In accordance with KRS 61.870(2), "public record" means all . . . documentary materials . . . in the possession of . . . a public agency.
The donations involved here, and any disbursements therefrom, were apparently handled privately. Presumably no donations, for example, were made payable to the "Kentucky State Treasurer," and thus processed through the state accounting system. One invoice, though addressed to the Finance and Administration Cabinet, was evidently returned to its sender, rather than being introduced into the state records system ("Lundy's invoice" item 13, supra, and John Winn Miller to Fred Cowan, Attorney General, November 28, 1988, at page 2). I take this to be some indication that some expenses related to the festivities in question were in fact handled privately.
The open records laws do not empower the Attorney General's Office to conduct a search. We have to live with the agency declarations that they do not have records Mr. Miller seeks (unless of course we believe the agency is falsely responding).
Lest there be any semantic question here involving "records of private entities or agents," if records, though regarding private donations and disbursements, are in the possession of or retained by a state agency, they are, in general, subject to inspection. See KRS 61.870(2), supra, (public records include those "in possession of or retained by a public agency" ). The agencies here state they do not have the records sought.
If records of the type sought by Mr. Miller were in the custody of some other state (or governmental) agency, known to one of the agencies involved here, such agency would have to be made known to Mr. Miller pursuant to KRS 61.872(3). Kentucky's open records statutes, however, do not require state personnel to identify private entities that might have records regarding private donations and expenditures from such donations.
The records sought by Mr. Miller are apparently not in the possession of, or retained by, a public agency, and thus are private records beyond the reach of the Kentucky open records statutes.
In conclusion, to the extent the agencies here involved have allowed inspection of (or provided) records within the scope of Mr. Miller's requests, that they had possession of or retained, and truthfully indicated that they do not have certain records sought by the requests, they have substantially complied with the open records statutes. State agencies and personnel are not required to provide information regarding, or to arrange inspection of, documents in the possession of private entities.
As required by statute, a copy of this opinion is being sent to the appealing party, Mr. John Winn Miller, who has a right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882