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 A. C. Wilson, Jr., Publisher, Cave Country Newspapers, Inc., in connection with his attempts to obtain copies of documents from Monroe Sanitation, Inc.
In a request letter, dated February 17, 1994, to Monroe Sanitation, Inc., Mr. Wilson requested that various documents be made available for inspection by his newspaper. All the documents pertained to waste removal and disposal by the company for the cities of Tompkinsville and Gamaliel.
Mr. Wilson submitted a letter to the Attorney General, dated March 4, 1994, stating in part that none of the requested documents had been made available. Apparently no written response was received from the company in question. Mr. Wilson states that he was advised by Mr. Billy Joe Anderson, President of Anderson Forest Products, Inc., who supposedly had custody or control over the documents in question, that he would have to utilize the Attorney General's Office to obtain access to requested documents.
Mr. Wilson's letter of March 4, 1994, also stated that he wanted to add one more item to the list of documents requested (minutes of meetings concerning Monroe Sanitation, Inc.). This office, however, cannot consider on an appeal a request which has not been initially presented to the public agency or the alleged public agency.
Since Mr. Wilson's appeal raised a question as to whether the company involved is a public agency for purposes of the Open Records Act and whether the requested documents are public records under the Act, this office wrote a letter to Mr. Anderson, dated March 15, 1994, requesting additional information. The information requested related in part to whether the company is a public agency under KRS 61.870(1). The letter also dealt with the responsibilities of a public agency relative to a request for information under the Open Records Act. This office's letter reiterated Mr. Wilson's requests for documents, as set forth in his letter of February 17, 1994, it asked that Mr. Anderson respond to the letter within five working days, and it advised that if there was no timely response the office would proceed to an adjudication of the matter.
As of March 28, 1994, nothing has been received from Mr. Anderson or Monroe Sanitation, Inc., and, as indicated in the letter of March 15, 1994, to Mr. Anderson, this office will now decide the matter on the basis of the information currently in its possession.
While Monroe Sanitation, Inc., appears to be a private corporation, rather than an agency of city government, the fact remains that for purposes of the Open Records Act the corporation could be a public agency if the terms of KRS 61.870(1)(h) are met relative to that particular corporation.
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."
The requesting party has alleged a contractual and financial relationship between the corporation and the cities of Tompkinsville and Gamaliel. Nobody has denied that such relationships exist.
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. Mr. Wilson asserts a financial and contractual relationship between the corporation and the cities which could make the corporation a public agency under KRS 61.870(1)(h). The corporation could have responded by providing access to the requested documents which probably would have answered the questions as to whether it is a public agency under the Open Records Act and whether those documents relating to business transactions between it and the two cities are public records. For whatever reason, the corporation has failed to respond and, in effect, has denied the request for access to the documents. See 94-ORD-16, copy enclosed.
It is, therefore, the decision of the Attorney General that Mr. Anderson and Monroe Sanitation, Inc., have not sustained their burden of proof in establishing that Monroe Sanitation, Inc., is not a public agency under KRS 61.870(1)(h) relative to the transactions between that corporation and the cities of Tompkinsville and Gamaliel concerning waste removal and disposal. As a public agency the corporation is subject to the Open Records Act and should have responded to the specific requests for documents set forth by Mr. Wilson in his letter of February 17, 1994.
Mr. Anderson and Monroe Sanitation, Inc., 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 the adverse party pursuant to KRS 61.880(3), but he shall not be named as a party to these actions or in any subsequent proceedings.