Request By:
IN RE: Sally Wasielewski/Kentucky Association of Counties
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky Association of Counties' (KACo) denials of Ms. Sally Wasielewski's July 14, 1992, request to inspect a number of documents in KACo's possession. Those documents relate to KACo and a number of programs administered by KACo, including KACO-KLC, KALF (Kentucky Association of Counties All Lines Fund), KOLT (Kentucky Association of Counties Leasing Fund), KARP (Kentucky Association of Counties Advance Revenue Program), and KAMP (Kentucky Association of Counties Medical Program).
On behalf of KACo, Mr. John M. Griggs, Executive Director, denied Ms. Wasielewski's request in a letter dated July 14, 1992. He stated that he had been advised by KACo's attorney, Mr. Phil Williams, "that the Kentucky Association of Counties is not a 'public agency' within the definition of KRS Chapter 163."
In her letter of appeal, Ms. Wasielewski argues that KACo and the programs it administers are public agencies for purposes of the Open Records Act insofar as they are funded by public monies, are closely intertwined with, and function as a vehicle of, local government, and, to the extent that they are created by Interlocal Cooperation Agreements entered into by counties or other governmental units, are interagency bodies of two or more public agencies. It is therefore her position that KACo and its programs are public agencies pursuant to KRS 61.870(1)(h) and (k). Those statutes provide that the term "public agency" includes:
(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;
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(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.
Ms. Wasielewski analyzes, in considerable depth, the applicability of the Open Records Act to KACo and each of the cited programs.
Pursuant to KRS 61.880(2), this Office requested additional documentation from Mr. Griggs in the form of a response to the question of whether KACo and its programs are "public agencies" within the meaning of KRS 61.870(1). In a letter dated September 2, 1992, KACo's attorney, Mr. Williams, responded to our request. He maintained that KACo "does not meet the statutory definition of a public agency. " Continuing, he observed:
The Kentucky Association of Counties, Inc. is a Kentucky non-profit corporation established in 1974. The corporation was not formed by any action of state or local government but, as indicated by the attached Articles of Incorporation, was created by the action of three individual incorporators. KACo does not operate as a local government, has no taxing or police authority, and the board of directors are not appointed by other public agencies.
KACo, as a non-profit corporation, receives revenues from membership dues, the operation of an annual convention, advertising in a newspaper, program sponsership fees, interest income and rental income. While county governments along with other nongovernmental or private entities pay membership dues, the membership dues paid by county government for the year ending June 30, 1991 (the last year for which an audited financial statement is available) represents less than 25% of the total revenue received by KACo.
Upon these bases, Mr. Williams reaffirmed Mr. Griggs' denial of Ms. Wasielewski's request.
The single issue presented in this appeal is whether KACo, and the individual programs it administers, are subject to the Open Records Act. We address the applicability of the Act to each of the cited entities in the order in which they appear in Ms. Wasielewski's letter of appeal, and conclude that the programs administered by KACo, to the extent that they were created by two or more public agencies, are "public agencies" within the meaning of KRS 61.870(1)(k). We defer final action on the issue of whether KACo itself is a "public agency" pending receipt of additional documentation from Mr. Williams on ths issue of funding and the appointment of its governing body.
KACo
We begin by noting that the 1992 General Assembly redefined the term "public agency" and significantly broadened its scope. KRS 61.870(1) now provides:
'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 an combination thereof.
(j) Any board, commission, committee, 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.
Ms. Wasielewski takes the position that because KACo is funded by public monies, in the form of membership dues, it is a public agency under KRS 61.870(1)(h). Additionally, she argues that KACo is "so closely intertwined with local government that . . . [it] function[s] as a vehicle of local governments." She emphasizes that KACo's membership consists entirely of local governmental units, and the membership elects the board of directors. Moreover, Ms. Wasielewski maintains that KACo "perform[s] essential governmental functions on behalf of the governmental entities which are its membership. " In response to these arguments, Mr. Williams states that KACo is a non-profit corporation created by the action of three individual incorporators. Although he acknowledges that it receives revenues from membership dues, he denies that those dues represent 25% or more of its total revenue.
According to its Articles of Incorporation, KACo was established in 1974 as a non-profit corporation for the purpose of "secur[ing] harmony of action in the various counties of the state in matters which affect the rights and liabilities of said counties, and . . . render[ing] technical, informational and other services to the various counties of the state . . . for the improvement of county government. " While the service it performs is intimately related to county government, we do not believe that this, in and of itself, brings it within the definition of a public agency set forth at KRS 61.870(1).
Based on the facts with which we are presented, we are unable to determine if KACo is a public agency for purposes of the Open Records Act. We have therefore requested specific documentation from Mr. Williams to substantiate his assertion that KACo derives less than 25% of its funding from state or local authority. In addition, we have asked that Mr. Williams respond to the argument that KACo falls within the definition of a public agency set forth at KRS 61.870(1)(i), relating to an entity where the majority of its governing body is appointed by a public agency as defined in KRS 61.870(1)(a) through (k), by a member or employee of such a public agency, or by any combination thereof. Upon receipt of this documentation, the Attorney General will issue a companion decision, addressing the applicability of the Open Records Act to KACo.
KACo-KLC
Ms. Wasielewski indicates that KACo-KLC, the workmen's compensation pool administered by KACo and the Kentucky Municipal League (now the Kentucky League of Cities) expends public funds, and collects $ 17,500,000.00 in premiums from its 850 participating public entities. Although she states that public funds were expended in establishing KACo-KLC, she does not indicate by what precise mechanism it was created or what percentage of the total funds it expends this $ 17,500,000 represents. On the other hand, there is nothing in the record to substantiate KACo's position that KACo-KLC is not a public agency.
In 92-ORD-1245, a copy of which is attached, the Attorney General addressed this precise issue. In that decision, we held that KACo-KLC, as an interagency body of two or more public agencies formed pursuant to KRS 342.350(4), was a public agency within the meaning of KRS 61.878(1)(k). We believe that opinion is dispositive of the issue presented in this appeal relative to KACo-KLC.
KALF, COLT, KARP, and KAMP
It is the opinion of this Office that the KALF, COLT, KARP, and KAMP programs administered by KACo fall squarely within the definition of a public agency, found at KRS 61.870(1)(k) in that they are "interagency bod[ies] 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). . . [.]"
These agencies may be briefly described as follows. KALF, or KACo All Lines Fund, is a liability insurance pool for county governments and their political subdivisions. COLT, or Kentucky Association of Counties Leasing Trust, is a "pooled leasing program" which finances capital improvements and equipment purchases through the use of lease instruments between itself and participating local government units. KARP, or KACo Advanced Revenue Program, is a short term lending program financed by the pooling of county tax or revenue anticipation notes. KAMP, or Kentucky Association of Counties Medical Program, is designed to assist public agencies in providing medical and health benefit coverage for their employees through the joint purchase of insurance policies or other methods authorized by statute.
In the case of each program, a trust is used as a vehicle to carry out the program, and the trust serves as an agreement between the participating public agencies under the Interlocal Cooperation Agreement Act, codified at KRS 65.210 et. seq. As Ms. Wasielewski notes, that act enables public agencies to exercise jointly those powers, privileges, or authority which they can exercise alone. With respect to each of these programs, the trust consists of two or more political entities, agencies or subdivisions of the state. We therefore conclude that KALF, COLT, KARP, and KAMP are public agencies under KRS 61.870(1)(k) insofar as they are constituted as interagency bodies of two or more counties.
Ms. Wasielewski and KACo may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.