Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in the submission of a request for public records by Mr. Edward N. Boehm, an attorney representing Bluegrass Coca-Cola Bottling Company, to the Kentucky State Fair Board on April 15, 1994. Those records are identified as:
All records relating to the [Request for Proposals dated February 23, 1994, and sent to Coca-Cola and other soft drink vendors by Premier Sports Marketing, Inc.,] including but not limited to the following: all proposals and bids received in response to the RFP; all correspondence, memoranda and other documents in the files of [Kentucky Fair and Exposition Center] or the Kentucky State Fair Board relating to the RFP, the decision to award or not award same and the decision to retract the RFP; and all documents relating to consideration by the [Kentucky Fair and Exposition Center] or the Kentucky State Fair Board of alternative methods of financing the proposed new Freedom Hall scoreboard.
In a response dated April 18, 1994, Mr. Lawrence L. Pedley, an attorney representing the Kentucky State Fair Board, responded to Mr. Boehm's request. Mr. Pedley maintained that the Fair Board "has no public records as defined by KRS 61.870(2)" which satisfy Mr. Boehm's request. Moreover, because Premier Sports Marketing, Inc., the corporation which contracted with the Kentucky State Fair Board to "evaluate and make recommendations to [the Fair Board] respecting the needs for scoreboards and signage at the Kentucky State Fairgrounds and . . . provide scoreboards and signs to be paid for by advertising revenues," is a private entity, it is "not bound by the provisions of the . . . Kentucky Open Records Law." 1
A brief summary of the facts giving rise to this appeal is in order. In 1991, the Kentucky State Fair Board entered into a contract with Premier Sports Marketing, Inc., for the purpose described above. 2 On February 23, 1994, Premier issued a request for proposals relative to the new scoreboard. At least two soft drink companies, including Mr. Boehm's client, responded by March 31, 1994. The Board subsequently located "a disassociated [sic] third party" who agreed to erect the scoreboard at its own cost, and recoup these costs through advertising. On April 6, 1994, Premier notified CocaCola that because the Fair Board was considering alternative methods of financing, it was "retracting [its] February 23, 1994 Request for Proposals, and [rejecting] the proposals received pursuant to that request . . . ." On behalf of his client, Mr. Boehm protested this action, and requested access to records relating to the RFP process from the Fair Board. For the reasons set forth above, the Board denied his request. This appeal followed.
We are asked to determine if the Kentucky State Fair Board properly denied Mr. Boehm's request for records relating to the request for proposals issued by Premier Sports Marketing, Inc., on February 23, 1994. Pursuant to KRS 61.880(2)(c), on March 13, 1995, this office requested additional documentation from the Kentucky State Fair Board to substantiate its position. Specifically, we asked that the Board, or a representative of Premier, respond to the question of whether Premier is a public agency within the meaning of KRS 61.870(1), and specifically "indicate what, if any, percentage of Premier's total revenues are received from state or local authority funds per KRS 61.870(1)(h), for example, under its contract with the Kentucky State Fair Board, or any other state or local agency." We also asked for a copy of the contract between the Fair Board and Premier.
In a response dated March 15, Mr. Pedley advised:
We have reviewed the definitions of "public agency" defined by KRS 71.870 [sic] and question whether Premier Sports Marketing falls within any of the definitions.
Premier is a privately owned out-of-state corporation which does business all over the country and, to the best of our knowledge, its only business in Kentucky last year was the installation of the scoreboard at Freedom Hall, constituting less than 25% of its revenue.
Although he stated that he had asked Premier, through the Fair Board, to confirm this information, at the time of this writing we have not received confirmation. Nor have we received a copy of the contract between Premier and the Fair Board which we requested.
It is the decision of this office that the Kentucky State Fair Board failed to meet its statutory burden of proof in sustaining the denial of Mr. Boehm's request pursuant to KRS 61.880(2)(c). Mr. Boehm's original open records request was directed to the Kentucky State Fair Board on whose behalf Mr. Pedley responded, advising Mr. Boehm that the Board "has no public records" within the meaning of KRS 61.870(2). Mr. Pedley also responded on behalf of Premier, advising Mr. Boehm that because it is a private entity, it is not bound by the provisions of the Open Records Act. In our view, the issue in this appeal is whether Premier falls within the parameters of the Open Records Act by operation of KRS 61.870(1)(h) as a body which derives at least 25% of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds.
Mr. Pedley having failed to adduce any proof relative to the percentage of state or local authority funds Premier receives, other than a bare assertion that it receives less than 25% of its total revenue from such funds, and Premier having failed to offer any independent confirmation of these assertions, we are left with no alternative but to conclude that there has been an insufficient showing vis-a-vis Premier's standing under the Open Records Act.
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception, 3 it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial, here that the entity in whose custody the disputed records apparently resides, is not a public agency, does not satisfy the burden of proof imposed on the agency. We have received no supporting documentation to confirm the assertion, nor have we been afforded access to the contract between the Fair Board and Premier which we specifically requested.
Based on the reasoning in 92-ORD-1301, 94-ORD-116, and 94-ORD-51, we find that the Kentucky State Fair Board has not sustained its burden of proof in sustaining its action. Records which are owned or maintained by or for Premier that are related to functions, activities, programs, or operations funded by state or local authority funds must therefore be treated as public records within the meaning of KRS 61.870(2). To the extent that Premier's contract with the Fair Board required it to "evaluate and make recommendations to [the Fair Board] respecting the needs for scoreboards and signage at the Kentucky State Fairgrounds" and to "providescoreboards and signs," the records which were generated in discharging its contractual obligation are related to functions, activities, programs, or operations funded by a state authority. Denial of access to these records, in whole or in part, must be based on a specific exception authorizing the withholding of the records per KRS 61.880(1).
It is also important to note that this office has recently recognized, in the context of the dispute arising from the rehabilitation of Kentucky Central Life Insurance Company, that:
Records which are "prepared, owned, used, in the possession of or retained by . . ." the Commissioner must be treated as "public record [s]" as defined in KRS 61.870(2). There can be little doubt that Commissioner Stephens is intimately involved in the bidding process for Kentucky Central Life Insurance Company, and has therefore "used" or at one time "possessed" the bidding documents which disclose the names of the bidders. While those documents may not be housed at the Department of Insurance, as Mr. Goad claims, they are public records of a public agency, to wit, the Commissioner of the Kentucky Department of Insurance.
93-ORD-113, pp. 6-7. There can be little doubt that the Fair Board participated in the bidding process relative to the scoreboard and signage at the Fairgrounds. Premier's duty under its contract with the Board was to "evaluate and make recommendations. " In the absence of contractual proof to the contrary, we must assume that the Board retained ultimate approval power. Thus, records relating to the RFP were "used" or at one time "possessed" by the Board, though they may not be reposited with the Board.
Finally, we are constrained to comment on the arrangement between Premier and the Fair Board with respect to the need for public accountability through records access. It is somewhat disquieting to find that a public agency would effectively avoid the requirements of the Open Records Act by failing to maintain copies of records relating to a major construction project at one of its facilities. In our view, it is inappropriate to secret away ostensibly public records in a purportedly private corporation when those records are clearly of interest to the public. Recognizing that it is not our duty under the Open Records Act to comment on the contractual arrangement between the Fair Board and Premier, which may be entirely proper, it is incumbent on us to remind the Board: that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
KRS 61.871. We urge the Kentucky State Fair Board to bear these observations in mind.
The Kentucky State Fair Board may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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