95-ORD-079 | KOGC

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 information relating to the home incarceration program in Warren County, Kentucky, by Ms. Jeanine Howard-Gibbs, a reporter for WKYU, Western Kentucky University's public radio station. On February 27, 1995, Ms. Howard-Gibbs requested the following information:

The number of people placed under the Bowling Green home incarceration program. The names, arrest records, and success rate of monitoring for all felony offenders released from jail and placed under the home incarceration program. The date the home incarceration program expires for the felony offenders.

In an undated response, Mr. John Becker, President of Court Monitoring Services, Inc., denied Ms. Howard-Gibbs's request, advising her, "We are a private business, and the records you requested are not available." This appeal followed.

On March 9, 1995, Mr. Becker responded to this office's request for additional information. Pursuant to KRS 61.880(2)(c), we asked that he explain why, in his view, Court Monitoring Services, Inc., is not a public agency for purposes of the Open Records Act. Specifically, we asked that he indicate what percentage of the corporation's expenditures is derived from state or local authority funds received under its contract with Warren County to operate the County's home incarceration program. Mr. Becker indicated that Court Monitoring Services, Inc., receives no funds from state or local authority. Continuing, he observed:

All revenue generated by the program is paid by the incarcerees who have been remanded to the program by the courts. Our agreement with the County specifically precludes the expenditure of any County funds in the operation of the program.

In calender [sic] year 1994, we did receive from the County checks totaling [sic] $ 52,625.62. These were not County monies but rather our supervision fees, paid by the incarcerees at the County Jail who were acting as agents on our behalf.

This arrangement, he explained, is consistent with KRS 532.210(5). Moreover, Mr. Becker maintained, the information requested by Ms. Howard-Gibbs "simply does not exist."

The question presented in the appeal is whether Court Monitoring Services, Inc., is a public agency for purposes of the Open Records Act. For the reasons set forth below, and upon the authorities cited, we conclude that it is not a public agency, and that it therefore did not violate the Open Records Act in denying Ms. Howard-Gibbs's request on these grounds.

KRS 61.870(1) defines the term "public agency. " 1 If an entity falls within one or more of the eleven subsections of this definition it is subject to the Open Records Act, and is required to comply with the procedural and substantive requirements of the law. To resolve the threshold issue presented in this appeal, we must determine how Court Monitoring Services, Inc., was created, and from what sources it receives funding. Mr. Becker asserts that Court Monitoring Services, Inc., is a "private business," and that it receives no state or local funding.

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 the funds expended by it in the Commonwealth from state or local authority. KRS 61.870(1)(h); OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 94-ORD-67. Where evidence is introduced that a private corporation receives at least 25% of its funds from state or local authority, the Attorney General has deemed it a "public agency, " and its records "public records," to the extent that they are related to functions, activities, programs, or operations funded by state or local authority. KRS 61.870(2); OAG 88-72; OAG 89-46.

Court Monitoring Services, Inc., was incorporated in 1991 in Delaware by Mr. Donald J. Becker. Under its contract with Warren County, it supervises the home incarceration system through the provision of equipment, personnel, and monitoring services. Thus, it is a private corporation doing business in the Commonwealth of Kentucky.

This fact, standing alone, is not conclusive. As noted, if a private corporation receives at least 25% of the funds it expends in the Commonwealth from state or local authority, it is a public agency within the scope of KRS 61.870(1)(h). Pursuant to KRS 532.210(5) and the contract between Warren County and Court Monitoring Services, Inc., Court Monitoring Services receives no state or local authority funds. Our review of that contract confirms that it is compensated for the services it performs by the incarcerees who participate in the home incarceration program.

KRS 532.220(5) provides:

Home incarcerees shall be under the supervision of the county jailer except in counties establishing misdemeanor supervision departments. Home incarcerees shall be subject to the decisions of such authorities during the period of supervision. Fees for supervision or equipment usage shall be paid directly to the supervising authority.

Elaborating on this provision, the contract stipulates at page 14:

COMPENSATION PAID TO OPERATOR

In consideration for providing services under this contract and as compensation for providing services under the contract and assuming the Operator has complied with all contract requirements set forth herein, it is agreed to by Warren County and the Operator that on a weekly, or bi-weekly, or monthly basis or to be determined upon mutual consent of the parties, all income generated from all defendants participating in the Home Incarceration Program shall be collected by the Misdemeanor Supervision Department. No employees or agents of the Operator shall handle any money from any defendants on the Home Incarceration Program, either while they are on the program or after they are off the program. All monies received by the Misdemeanor Supervision Department shall be turned over, on a routine basis to the Warren County Treasurer. The Warren County Treasurer or his designee shall thereafter perform a calculation and determine the total outlay of Warren County, Kentucky by virtue of this participation in the Home Incarceration Program as defined herein. . . .

After all deductions have been made for expenses and lost contingencies as set forth hereinabove, any and all remaining net amounts shall be paid to the Operator in consideration for services rendered under this contract . If there is a dispute as to whether a deducted expense is related to the Home Incarceration Program or is an appropriate expense to be deducted, then Warren County, Kentucky shall be the sole decision maker in that regard and the Operator hereby agrees to same.

(Emphasis added.) Thus, although the Misdemeanor Supervision Department acts as a conduit for the money received from incarcerees who participate in the program, neither the Department, nor the county generally, expend public funds in the operation of the program. Accordingly, we conclude that Court Monitoring Services, Inc., is not a public agency within the scope of KRS 61.870(1)(h).

As additional grounds for denying Ms. Howard-Gibbs's request, Mr. Becker indicated that the information she sought simply does not exist. It should, however, be noted that KRS 532.250 establishes a monthly reporting requirement, all or portions of which may be subject to disclosure under the Open Records Act. That statute provides:

At least once every thirty (30) days, the supervising authority shall provide all local and county law enforcement agencies with a list of the offenders under home incarceration in their jurisdictions. This list shall include the following information:

(1) The prisoner's place of home incarceration;

(2) The crime for which the prisoner was convicted;

(3) The date that the sentence of home incarceration will be completed; and

(4) The name, address and phone number of the officer of the authority supervising the prisoner.

Ms. Howard-Gibbs may wish to resubmit her request to the Misdemeanor Supervision Department, located in the Warren County Jail, since much of the information she seeks must be maintained by that public agency.

Ms. Howard-Gibbs may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.

Footnotes

Footnotes

1 As used in KRS 61.872 to 61.884, unless the context requires otherwise:

(1) "Public agency" means:

(a) Every state or local government officer;

(b) Every state or local government department, division, bureau, board, commission, and authority;

(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, committee, 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[.]