Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Cumberland County Hospital's response to Ricky Riley's open records request to inspect hospital records concerning bids submitted to re-stripe and seal the hospital parking lot. The hospital denied Mr. Riley's request on the basis that it was not a public agency subject to the Open Records Act.
In his letter of appeal, Mr. Riley stated that he should have been allowed to look at the bids because he understood the hospital was owned by Cumberland County and the records should be public under the Open Records Act.
After receipt of Mr. Riley's letter of appeal, we sent a "Notification of Receipt of Open Records Appeal" to the Cumberland County Hospital with a copy of the letter of appeal attached. Pursuant to 40 KAR 1:030, Section 2, an agency may respond to a letter of appeal.
R. Fred Capps, Esq., responded on behalf of the hospital. In his response, Mr. Capps stated:
The Cumberland County Hospital is a private non-profit corporation, which holds a long term lease on the real estate upon which the hospital facilities are constructed. The Cumberland County Hospital was not created by a governmental authority.
Stock in the corporation is owned by a number of individuals, who at annual or periodic shareholder meetings vote and elect the board of directors, composed of doctors, employees and private citizens, who are solely responsible for the control, oversight, direction and decision making of the hospital. None of the directors are appointed by any public agency, nor by any member or employee of Cumberland County or any other public agency. The hospital is a self-sustaining entity, which generates its income primarily from providing health care services.
The Lessor of the real estate, Cumberland County, nor any of its officials, agents, or employees have any direct contact or involvement with the control, management or direction of the hospital. No hospital records are maintained by Cumberland County.
The Cumberland County Hospital does not receive funding from any state or local authority, except that the hospital does receive Medicaid funds and revenue collected via a Ambulance Tax Revenue, the combination of which does not constitute 25% of the funds that it expends in the Commonwealth of Kentucky.
Documentation can be provided regarding the foregoing statements to substantiate the revenue expenditures.
It is our position that the Cumberland County Hospital is not a public agency, within the meaning of KRS 61.870, and is not subject to the Open Records Act.
The issue presented in this appeal is whether the Cumberland County Hospital is a public agency for purposes of the Open Records Act. For the reasons which follow, we conclude that the hospital is not a public agency within the meaning of KRS 61.870(1), and is not subject to the Act.
KRS 61.870(1) provides:
(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 governmental 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 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.
Any entity which falls within one of these definitional sections is subject to the Open Records Act and is required to comply with the provisions of that law.
Mr. Capps explained in his response to the letter appeal that the Cumberland County Hospital is a private non-profit hospital. It was not created pursuant to a state or local statute or by a governmental agency or authority. None of its board of directors are appointed by any public agency of Cumberland County or any other public agency. Mr. Capps noted the hospital received Medicaid funds collected through an ambulance tax, however such amount did not constitute at least 25% of its funds expended by it in the Commonwealth which were derived from state or local funds. In 93-ORD-90, we held that Medicare and Medicaid funds do not constitute "state or local funds" in determining whether an entity receives 25% or more of its funds from public coffers.
Accordingly, it is the decision of this office that the foregoing indicates that the Cumberland County Hospital is not a public entity within the meaning of KRS 61.870(1) and cannot be required to release its records under Open Records Act.
A party aggrieved by this decision may challenge it by filing an appeal with 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 a party in that action or in any subsequent proceeding.