Request By:
IN RE: James E. Parsons/KACo-KLC Self-Insurance Fund
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 KACo-KLC Self-Insurance Fund's denial of Mr. Philip G. Ciafardini's August 5, 1992, request to inspect certain documents in the custody of KACo-KLC. Mr. Ciafardini is the Director of Finance for the City of Newport. Although we have not been provided with a copy of his written request, it appears that he asked to inspect documents relating to premium increases for Fund members.
In his letter of denial, Mr. Robert F. Hart, Jr., Executive Director of KACo-KLC, indicates that Mr. Ciafardini was voluntarily provided with all requested information, with the exception of the actuarial report, "which remains confidential pursuant to the Board policy." Continuing, he notes:
Your letter of August 5, 1992, additionally purports to be a request under the Kentucky Open Records statute. Mr. Williams, the Fund counsel, has previously advised me that the KACo-KLC Fund is not a public entity as defined by KRS 163. Please feel free for either you or your attorney to contact Mr. Williams concerning the application of Kentucky statutes on open records to the KACo-KLC Fund.
Hence, this dispute centers on the applicability of the Open Records Act to KACo-KLC and its duty to release the records it generates, in this instance, actuarial studies.
In his letter of appeal to this Office, Mr. James E. Parsons, Newport City Manager, takes the position that since the funds received by KACo-KLC represent premiums paid by cities and counties in Kentucky, and the members of its governing body are elected city and county officials, it is a "public agency" for purposes of the Open Records Act pursuant to KRS 61.870(1)(h), (i), and (k). Those provisions define a public agency as:
(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[;]
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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[.]
Responding to these arguments, Mr. Dennis L. Mattingly, an attorney representing KACo-KLC, argued that the City of Newport's request did not "meet the requirements of KRS 61.880 and should be dismissed." Alternatively, he maintained that the City's open records request was denied because KACo-KLC "is not a public entity as defined by KRS 61.870 et seq. " Mr. Mattingly did not, however, elaborate on his position.
Pursuant to KRS 61.880(2), this Office requested additional information from Mr. Hart or a representative of KACo-KLC in the form of a response to the question whether the Fund is a "public agency" within the meaning of KRS 61.870(1). Specifically, we asked whether KACo-KLC derives any funds from state or local government, and if so, what percentage of its total budget these public funds comprise. In addition, we asked by what mechanism KACo-KLC was created.
In a letter dated September 25, 1992, Mr. Mattingly responded to our request. He explained that KACo-KLC was organized pursuant to KRS 342.350(4) which allows two or more employers to establish a workers' compensation self-insurance fund. Continuing, he stated:
KACo-KLC is administered by a Board of Trustees who are appointed by either the Kentucky Association of Counties or the Kentucky League of Cities, both of whom are Kentucky non-profit corporations. Participating members in the KACo-KLC program pay a self-insurance workers' compensation premium into the fund.
He reaffirmed his view that KACo-KLC does not fall within the statutory defition of a public agency. In closing, he noted:
In the event the Attorney General so determines that KACo-KLC is a public agency, we believe that the request made by Mr. Ciafardini for certain documents falls within the statutory exceptions which allow those documents to be kept confidential under the Kentucky Open Records Act. I do, however, believe it is premature to file objections to the specific items in Mr. Ciafardini's request until after a determination is made as to whether KACo-KLC is a public agency and subject to the Open Records Act.
As we have stated, the issue presented in this appeal is whether the KACo-KLC Self-Insurance Fund is a "public agency" for purposes of the Open Records Act, and its records are therefore "public records" which must be made available for inspection unless otherwise exempt. For the reasons set forth below, we conclude that KACo-KLC is a "public agency, " as defined in KRS 61.870(1)(k), and must comply with the provisions of the Open Records Act in releasing nonexempt public records.
Mr. Mattingly indicates that KACo-KLC was organized pursuant to KRS 342.350(4), which allows two or more employers to establish a workers' compensation self-insurance fund. That statute provides, in part:
[T]he board, under rules and regulations as it shall prescribe, may permit eleven (11) or more employers or two (2) or more city, county, municipal, or urban, county employers or their agencies to enter into agreements to pool their liabilities under this chapter for the purpose of qualifying as self-insurers.
As an interagency body of two or more public agencies in which each public agency is defined in one of the preceding subsections of the definition, KACo-KLC clearly falls within the parameters of KRS 61.870(1)(k). Although Mr. Mattingly does not reveal the identity of the two employers, we may reasonably assume they were either a city, county, municipal, or urban county employer. By the express terms of KRS 61.870(1)(k) and KRS 342.350(4), KACo-KLC is a public agency, and its records are public records. While we need not address the question of whether KACo-KLC also falls within the definition of a public agency set forth at KRS 61.870(1)(h), since we believe KRS 61.870(1)(k) is dispositive of this appeal, we note that the Fund has failed to sustain its burden of proof relative to the issue of its funding, and that the issue must accordingly be resolved in favor of Mr. Parsons.
Mr. Mattingly argues, in the alternative, that Mr. Ciafardini's request did not meet the requirements of KRS 61.880, and that it falls within the statutory exceptions which allow those documents to be kept confidential under the Open Records Act. He does not, however, state the precise nature of his objections under either KRS 61.880 or KRS 61.878. Accordingly, this matter is remanded to KACo-KLC for a response consistent with KRS 61.880(1). KACo-KLC must determine within three business days after receipt of this decision whether it will comply with Mr. Ciafardini's request, and notify him in writing of its decision. If it denies any portion of his request, KACo-KLC must include a statement of the specific exception authorizing nondisclosure and a brief explanation of how the exception applies to the record withheld.
In conclusion, we find that KACo-KLC Self-Insurance Fund is a public agency, and remand this matter to the Fund for action consistent with this holding.
KACo-KLC may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.