Request By:
Mr. N. Stephen Friend
President
Pike County Correctional Facilities Corporation
Pike County Courthouse
Main Street
Pikeville, Kentucky 41501
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of July 5, 1989, Mr. Roger D. Ford, Campaign Manager for the Hatfield Election Committee, has, in substance, appealed, under Open Records provisions, your response to his June 13, 1989 request for certain records concerning the Pike County Correctional Facilities Corporation.
FINDINGS IN BRIEF
You acted consistent with the provisions of KRS 61.870 to 61.884 to the extent that you promptly responded in writing to a request to inspect certain records held by your office. Records held by a private entity are beyond the reach of Open Records provisions.
FACTUAL BACKGROUND
By letter of June 13, 1989, Roger Ford wrote you, in care of the Pike County Correctional Facilities Corporation, and asked that certain information be made available to him pursuant to "Open Records Law," in connection with construction of a jail/ courthouse facility in Pike County.
Mr. Ford asked for:
(1) Exhibit A: Deed from Pike County to Pike County Correctional Facilities concerning transfer of land ownership;
Exhibit B: Lease of land/building between Pike County and the Corporation;
Exhibit C: Resolution of Corporation authorizing issuance and sale of bonds for construction of jail/ courthouse facility;
Exhibit D: Mortgage Deed of Trust from Corporation to FmHA or between Corporation and Trustee as the case may be;
Exhibit E: Notice of Bond Sale;
Exhibit F: Official Notice of Sale of Bonds;
Exhibit G: Statement of Essential Facts;
Exhibit H: Bid Form(s) from Constructors/Vendors;
Exhibit I: Financing Statement(s);
Exhibit J: Security Agreement;
(2) Listing of all employees of the Corporation that are on salary, drive county vehicles, their date of hiring;
(3) All persons that are in management positions, their salaries and date of hire.
By letter of June 14, 1989, you responded to Mr. Ford. You enclosed in your response a copy of the deed sought, (la, supra), and a copy of a court order regarding the lease (lb, supra). You explained that the lease had not been executed. Regarding items 1c through 1j, you indicated, in substance, that you did not have the records in question, and that some were not in existence at the time of the request. You provided names and phone numbers of possible sources of the information requested. Concerning Item 2, you provided a name, pay rate, and hire date. Item 3, you indicated, was "N/A," apparently meaning there was no information to be furnished.
Mr. Ford, by letter of July 5, 1989 to Attorney General Cowan, in substance appealed under Open Records provisions.
Mr. Ford's letter indicates he was denied access to certain "highlighted" information. Items set forth above as Exhibits "C" and "D" were "highlighted" in blue, on a copy of Mr. Ford's June 13 letter to you, that accompanied his appeal to this office. His letter states he "was informed these two items were being handled by Merit Financial, Inc., in Lexington," where the information could be obtained. He also indicates that upon contacting Mr. Terrell Ross of Merit Financial, he was "denied the names of the people and companies which purchased the anticipated bonds for the financing of the new county jail and courthouse annex. "
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part for the Attorney to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency "acted consistent with provisions of KRS 61.870 to 61.884."
The Pike County Correctional Facilities Corporation was understood to have been established by the Pike Fiscal Court, and is an instrumentality of the Fiscal Court, and thus is a public agency subject to Open Records provisions within the meaning of KRS 61.870(1).
You received a request to inspect certain public records dated June 13, 1989. You responded by letter of June 14, 1989, supplying certain information in conformity with the request.
Concerning records not supplied, your letter indicates in substance, though not by its literal words, that you did not have the records sought, that certain records did not exist at the time of the request, and that certain records sought by the request were in the hands of others. During a telephone conversation with you, on Monday, August 28, 1989, you indicated that the "other records" (i.e., beyond that supplied) simply were not in existence at the time you received Mr. Ford's request.
Your response does not indicate a denial of inspection of records, but rather, in substance, that the records sought were either not in existence or not in the custody of the agency.
To the extent you promptly responded in writing to a request to inspect public records, and furnished certain records in compliance with the request, and indicated where other information might be sought, you acted "consistent with the provisions of KRS 61.870 to 61.884."
Mr. Ford's letter of appeal indicates he contacted Mr. Terrell Ross, of Merit Financial, Inc., and was denied the names of people and companies that purchased anticipated bonds for the financing of the new jail and courthouse annex. We have no reason to conclude that Merit Financial, Inc., is other than a private entity. As such, Merit Financial, Inc., and records held by it regarding bond purchasers, if any, are beyond the reach of Open Records provisions.
Mr. Roger Ford may have a right to appeal, in accordance with KRS 61.880(5), findings of this opinion.
As required by statute, a copy of this opinion is being sent to Roger D. Ford, who requested it.