Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: CHRIS GORMAN, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General from the Brandenburg Telephone Company's response to Mr. Eddie R. Edwards's open records request to the telephone company to account for the 911 service funding fee moneys it collects from its residential and commercial customers on behalf of Hardin County's 911 emergency telephone service system.
For the reasons which follow, it is the conclusion of this office that the Brandenburg Telephone Company is not a "public agency" as defined by KRS 61.870(1) and its records are exempt from public inspection under the Open Records Act.
KRS 61.870(1) defines "public agency" as follows:
(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[.]
Ms. Mary R. Harville, on behalf of the telephone company, responded to Mr. Edwards's request, stating that the "Brandenburg Telephone Company, Inc., is not a 'public agency' and, therefore, is not in the possession of 'public records' within the meaning of the Kentucky Open Records Act, KRS 61.870. The information you have requested, therefore, is not available from Brandenburg Telephone Company, Inc., under the Open Records Act. "
In documentation supplied this office by Ms. Harville, subsequent to receipt of Mr. Edwards's letter of appeal and which is authorized by KRS 61.880(2) and 40 KAR 1:030, Ms. Harville reaffirmed that the Brandenburg Telephone Company was a privately owned and operated business.
In addition, in order to obtain further documentation, the undersigned contacted Ms. Harville by telephone to inquire if the telephone company derived at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. Ms. Harville stated that it did not and the amount of money the telephone company received from the county for the collection and handling of the 911 service fee was a "minuscule" amount of the funds expended by the company.
Accordingly, it is the decision of this office that the Brandenburg Telephone Company is not a "public agency" as defined in KRS 61.870(1) and is not governed by the Open Records Act.
Mr. Edwards should present his open records request to the appropriate government body or public agency in Hardin County which is responsible for the establishment and operation of the 911 emergency telephone service. See KRS 65.750 to KRS 65.760 (copies enclosed) .
The telephone company is not a public agency and merely collects the 911 service funding fee on behalf of the county which is accountable for the moneys collected and its proper use. KRS 67.083. See also OAG 91-182 regarding use of 911 funds (copy enclosed) .
Mr. Edwards 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.