Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This appeal originated in a request for records submitted by Mr. Dick Moore to the Owensboro Museum of Fine Arts on July 18, 1993. Mr. Moore requested access to the Museum's revenue and expense statement for this fiscal year. On July 22, 1993, Ms. Mary Bryan Hood, the Museum's Director, responded to Mr. Moore's request, advising him that the Museum is not subject to the Open Records Act inasmuch as it is a nonprofit corporation created pursuant to KRS Chapter 273, and "not a body formed by state or local authority in any branch of government. . . ." In support of her position, Mr. Hood cited OAG 84-237.
The issue presented in this appeal is whether the Owensboro Museum of Fine Arts is a public agency within the meaning of KRS 61.870(1), and is therefore subject to the Open Records Act. On July 28, 1993, the Attorney General requested additional information from the Museum in the form of a response to this question. Based on its response, we conclude that the Museum is not a public agency within the meaning of KRS 61.870(1), and is not subject to the Open Records Act.
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[.]
A "public record" is defined as:
All books, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. 'Public record' shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority [.]
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 the Museum's Director, Ms. Hood, to explain by what mechanism it was created, and from what source it derives its funds.
In a response dated August 13, 1993, Mr. Charles J. Kamuf, attorney for the Owensboro Museum of Fine Arts, explained that the Museum is not a public agency, but is instead a private, not for profit corporation organized under the provisions of Chapter 273 of the Kentucky Revised Statutes. With respect to its financial profile, Mr. Kamuf clearly established that the Museum derives substantially less than 25% of the funds it expends in Kentucky from state or local authority. To substantiate his position, he attached a letter from the Museum's independent auditors, York, Neel & Company. That letter confirms that state and local funding accounts for approximately 18.7% of the Museum's total revenue. If expansion fund contributions are excluded from total revenue and from revenue from state and local authorities, that percentage is reduced to 17.6% of the Museum's total revenue.
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. OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114. 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. Kamuf indicates that the Owensboro Museum of Fine Arts was not created by state or local authority, nor does it receive at least 25% of its funding from state or local authority. He acknowledges that the Museum receives between 17.6% and 18.7% of its funds from local authorities. As noted, this is not sufficient to bring it within the purview of KRS 61.870(1)(h). We therefore conclude that the Owensboro Museum of Fine Arts is not a "public agency" for purposes of 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. Moore may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although the Attorney General should be notified of any action filed against the Museum, pursuant to KRS 61.880(3), he should not be named as a party in that action, or in any subsequent proceedings.