Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; Thomas R. Emerson, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Sheila Trice Bell, Esq., University Legal Counsel, Northern Kentucky University, in connection with her attempts to obtain copies of documents from the Highland Heights Volunteer Fire Department.
In a request letter dated October 13, 1993, to Brad Derrick, Fire Chief, Highland Heights Fire Department, Inc., Ms. Bell requested that the fire department furnish her with copies of eleven specifically described categories of documents.
In a letter to Ms. Bell, dated October 27, 1993, Steven J. Franzen, Esq., stated in part as follows:
On behalf of the Highland Heights Volunteer Fire Department we do not believe that we are subject to your open records request. The Highland Heights Volunteer Fire Department is a private corporation and we think the open records request was never intended to allow access to the records of a private corporation.
Mr. Franzen concluded by stating that, "In any event we are not going to comply with your open records request."
In a letter to the Attorney General, dated October 29, 1993, Ms. Bell, among other things, asked this office to review the handling of her request by Mr. Franzen relative to the status of the fire department as a public agency. Ms. Bell maintained in her letter that the fire department is a public agency pursuant to KRS 61.870(1)(h) because it receives 25% of its funding from the city of Highland Heights.
Ms. Bell, in a letter to the Attorney General's Office, dated December 23, 1993, again requested that this office decide whether the fire department violated the terms and provisions of the Open Records Act. She reiterated her allegation that the fire department is a public agency "because of its relationship with the city."
The undersigned Assistant Attorney General, in a letter to Mr. Franzen, dated January 12, 1994, relying upon KRS 61.880(2), requested additional information from him or the fire department relative to its sources of funding and what percentages of its funds come from state or local sources. Pursuant to a subsequent telephone conversation Mr. Franzen was given until February 1, 1994 to supply the material requested. As of February 1, 1994 nothing has been received from Mr. Franzen and, as indicated in the letter of January 12, 1994 to Mr. Franzen, this office will now decide the matter on the information currently in its possession.
Assuming that Mr. Franzen is correct that the fire department in question is a private corporation, as opposed to a fire district organized pursuant to KRS Chapter 75 or a municipal fire department organized pursuant to KRS Chapter 95, the fact remains that for purposes of the Open Records Act the fire department could be a public agency if the terms of KRS 61.870(1)(h) are met relative to that particular fire department.
KRS 61.870(1)(h) states that the definition of a "public agency" includes, "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."
KRS 75.050 in part authorizes a volunteer fire department to contract with a municipal corporation for fire protection services. This provision has been invoked over the years by cities and volunteer fire departments.
In matters presented for decision by the Attorney General under the Open Records Act, KRS 61.880 (2) provides in part that the burden of proof shall rest with the public agency denying the request. Ms. Bell maintains that the financial relationship between the fire department and the city makes the fire department a public agency under KRS 61.870(1)(h). Mr. Franzen states that the fire department is not subject to the Open Records Act but he has refused to submit documentation relative to the financial relationship between the fire department and the city.
It is, therefore, the decision of the Attorney General that the fire department has not sustained its burden of proof in establishing that it is not a public agency under the terms of KRS 61.870(1)(h). As a public agency the fire department is subject to the Open Records Act and should have responded to the specific requests for documents submitted by Northern Kentucky University.
The Highland Heights Volunteer Fire Department may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. The Attorney General shall be notified of any actions filed against Northern Kentucky University pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.