Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the failure of the Carpenters Local Union No. 64; Laborers International Union of North America, AFL-CIO Local 576; United Brotherhood of Carpenters and Joiners of America, to respond to requests of Muhamad Thabit Rashad, made pursuant to the Open Records Act, to inspect certain records of the above listed labor unions.
The sole issue presented in this appeal is whether the labor unions are public agencies within the meaning of KRS 61.870(1), and therefore subject to the Open Records Act. For the reasons set forth below, we conclude that they are not public agencies and are not subject to the mandatory disclosure provisions of the Act.
KRS 61.870(1) defines "public agency as follows:
(l) "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), (i), or (j) of this subsection;
(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 (j) 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.
This office has consistently recognized that a private corporation comes within the purview of the Open Records Act only if it derives at least twenty-five percent of its funds from state or local authority. OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 93-ORD-79; 93-ORD-96; 93-ORD-27; 94-ORD-1; Where evidence is introduced that an agency receives at least twenty-five percent of its funds from state or local authority, the Attorney General has deemed it a public agency. OAG 88-72; OAG 89-46.
Normally, the burden of proof is upon the agency to establish that it is not a "public agency" subject to the Open Records Act. However, in this instance, it is clear that the labor unions do not fall within the definition of "public agency, " as required by KRS 61.870(1). Moreover, there is no suggestion or claim by the requester that the labor unions derive "at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds," as required by KRS 61.870(1)(h), to be deemed a public agency under the Act.
Accordingly, under these facts, it is the decision of this office that the Carpenters Local Union No. 64; Laborers International Union of North America, AFL-CIO Local 576; United Brotherhood of Carpenters and Joiners of America, are not public agencies and, thus, are not subject to the mandatory disclosure provisions of the Open Records Act.
A party aggrieved by this decision may appeal it 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 proceeding.