Request By:
Mr. Jim C. Coleman
Attorney for Grace B. Hayes Estate
21 Main Street
P.O. Box 85
Edmonton, Kentucky 42129Mr. H. Jefferson Herbert, Jr.
Attorneys at Law
Herbert & Herbert
135 North Public Square
P. O. Box 1000
Glasgow, Kentucky 42142-1000Mr. Willard Trammel
Assistant Administrator
T. J. Samson Community Hospital
North Jackson Highway
Glasgow, Kentucky 42141
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORD DECISION
This matter comes to the Attorney General on appeal from the failure of the Assistant Administrator of the T.J. Samson Community Hospital, Mr. Willard Trammel, to respond to Mr. Byron D. Jefferies' July 8, 1992, request to inspect the Hospital's "Incident Protocol/Operational Procedures." The appeal was filed by Mr. Jim C. Coleman on behalf of Mr. Jeffries, who is the executor of the estate of Ms. Grace Hayes. Mr. Coleman represents the Hayes estate.
Mr. Coleman indicates that after repeeated attempts to secure the document by telephone and in person, Mr. Jeffries submitted a written request to Mr. Trammel, but did not receive a response within three working days as required by KRS 61.880(1). It is his position that the Hospital is subject to the Open Records Act and must release its "Incident Protocol/Operational Procedures." He does not, however, adduce any evidence in support of this position.
The sole issue presented in this appeal is whether the T. J. Samson Community Hospital is a "public agency" within the meaning of KRS 61.870(1), and is therefore subject to the Open Records Act. On July 31, 1992, the Attorney General requested additional information from the Hospital in the form of a response to this question. 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 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 Mr. Trammel to explain by what mechanism the Hospital was created, and from whence it derives its funds.
In a response dated August 12, 1992, Mr. H. Jefferson Herbert, attorney for the T. J. Samson Community Hospital, explained that the Hospital is a private, not for profit corporation, and therefore not a "public agency, " as defined in KRS 61.870(1). Continuing, he observed:
The Board of Directors of the T. J. Samson Community Hospital is self appointed - that is, the Board itself appoints its own directors, and has for many years. None of the directors are appointed by a public agency, nor by any member or employee of a public agency, as defined in KRS 61.870.
The Hospital receives no funding from any state or local authority. It does receive Medicaid funds in consideration of the treatment of eligible persons at the Hospital. However, even if Medicaid funds were considered as "funds" within the meaning of KRS 61.870(1)(H), [sic] nonetheless they do not constitute 25% of the funds expended by the Hospital in the Commonwealth of Kentucky.
He therefore concluded that the Hospital 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 "public agency. " OAG 88-72; OAG 89-46.
Mr. Herbert indicates that the T. J. Samson Community Hospital was not created by state or local authority, nor does it receive funding from state or local authority. He acknowledges that the Hospital receives Medicaid funds "in consideration of the treatment of eligible persons at the Hospital," but states that they do not constitute 25% of the funds it expends in the Commonwealth. We therefore conclude that the Hospital is not a "public agency" within the meaning of KRS 61.870(10, and is not subject to the Open Records Act. Accordingly, it is not required to release its records, or to adhere to KRS 61.880(1) in responding to requests for records.
Mr. Coleman may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 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.