Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
The matter comes to the Attorney General on appeal from the actions of The Fund for Women, Inc., relative to Ms. Holly H. Gathright's request to inspect the Fund's 1990 and 1991 tax returns. Ms. Gathright indicates that after repeated attempts to secure the documents by telephone and in person, she was afforded access to the Fund's 1990 return, but was not permitted to inspect the 1991 return.
The single issue presented in this appeal is whether The Fund for Women, Inc., is a "public agency" within the meaning of KRS 61.870(1), and therefore subject to the Open Records Act. Pursuant to KRS 61.880(2), the Attorney General's Office requested additional information from the Fund in the form of a response to this question. Specifically, we asked whether monies reported on the Fund's 1990 tax return, and described as government grants, represented agency funds. KRS 61.870(1) provides:
(1) 'Public agency' means:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j) or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a Hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]
If an agency falls within this definition, it is subject to the Open Records Act, and is required to comply with the law by responding to requests for records within three working days. We therefore asked that a representative of the Fund explain by what mechanism it was created, and from whence it derives its funds.
In a response dated September 11, 1992, Mr. Raymond M. Burse, an attorney representing the Fund, explained that The Fund for Women is not a public agency. Continuing, he observed:
The grants to which you make reference in your letter were all pass through funds from the City of Louisville to various agencies who had applied to the City for such funds. The Fund for Women exercised no discretion in regards to the expenditure of these funds. The use of pass through agencies for various types of funding is a common occurrence. . . . The technical assistance and oversight provided by the Fund included seeing that the funds were distributed to the earmarked entities, agencies and organizations.
He therefore concluded that the Fund was not subject to the Open Records Act.
This Office has consistently recognized that a private corporation comes within the purview of the Open Records Act only if it derives at least 25% of its funds from state or local authority. 1 OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61. Where evidence is introduced that an agency receives at least 25% of its funds from state or local authority, the Attorney General has deemed it a "public agency. " OAG 88-72; OAG 89-46.
Mr. Burse indicates that The Fund for Women, Inc., was not created by state or local authority, nor does the Fund itself receive funding from state or local authority. Apparently, it acts as a conduit through which local funds pass to agencies such as the Rape Relief Center and the Spouse Abuse Center. According to Mr. Burse, the Fund oversees these agencies, and insures that the funds are properly distributed, but does not itself receive any state or local funds. In the absence of evidence to the contrary, we conclude that The Fund for Women, Inc., is not a "public agency" within the meaning of KRS 61.870(1), and is not subject to the Open Records Act. This decision does not, of course, relieve the Fund from its obligation to make its records available for public inspection under any other state or federal law.
Ms. Gathright may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes
1 Those opinions were premised on the following definition of " public agency" :
[A]ny other body which is created by state or local authority in any branch of government or which derives at least twenty-five percent (25%) of its funds from state or local authority.
KRS 61.870(1). We do not believe that the slight modification in the language of the definition effected by the 1992 General Assembly mandates a different conclusion in this appeal.
KRS 61.870(1). We do not believe that the slight modification in the language of the definition effected by the 1992 General Assembly mandates a different conclusion in this appeal.