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 comes to the Attorney General on appeal from the Kentucky Magistrates and Commissioners Association's (KMCA) response to Judith B. Arnold's May 11, 1998 open records request for the following records:
1. Copies of the by-laws and charter.
1. Information on whether this is a public agency and how it is funded.
1. Any documents that detail who the association is, what the association is set up to do and how it is run.
1. What the limitations are on this agency?
By letter dated May 14, 1998, Richard Tanner, Executive Director, KMCA,
responded to Ms. Arnold's request. In his response, Mr. Tanner stated:
Per your request, you will find enclosed a copy of the by-laws and the charter of the Kentucky Magistrates and Commissioners Association. I believe any questions you may have had can be answered within these documents and from our conversation.
In her letter of appeal, Ms. Arnold acknowledged receipt of the by-laws and charter, but stated that the KMCA did not answer all of her questions. In her appeal, she seeks to have all her questions and requests answered in writing and to know whether the KMCA is a public agency.
After receipt of the letter of appeal, we sent a "Notification of Receipt of Open Records Appeal" to the KMCA and enclosed a copy of Ms. Arnold's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Tanner provided this office with a response to the issues raised in the appeal. In his response, Mr. Tanner made the following comments:
On May 11, 1998, Mrs. Arnold and her husband visited me at my office located at 400 Kings Daughters Drive. We discussed at length some questions that she had and her interests in the Kentucky Magistrates and Commissioners Association. At that time I thought Mrs. Arnold was satisfied with that conversation and answers to those questions. However, when she left, she placed the letter down on the corner of my desk and suggested I might want to review it. I had no idea that she was dissatisfied with our conversation. However, I did review and responded to those questions on a voluntary basis. You will find enclosed a letter and the documents I sent to Mrs. Arnold.
Her question number one - the copies of the By-Laws and Charter were mailed to Mrs. Arnold on May 14, 1998.
Question number two - information on whether this is a public agency and how it is funded was discussed at length. I pointed out to Mrs. Arnold that this association was funded by dues paid by counties or individual magistrates or commissioners with additional moneys received from contracts for marketing and management of other organizations, interest on money and other small business activity. The very first and second pages of the Charter or Articles of Incorporation, explain that the Kentucky Magistrates and Commissioners Association is a private, not for profit corporation, organized under Chapter 273, Kentucky Revised Statutes. Therefore the association is not a public agency.
Question number three - any documents that detail who the association is, what the association is set up to do and how it is run is also answered in these documents. Who the association is, is obvious that it is the Magistrates and Commissioners from across the Commonwealth. The membership is also explained in Article 1, Section 1 of the by-laws. "A magistrate or county commissioner of the Commonwealth of Kentucky is entitled to a membership in this association upon payment of his/her annual dues" which also touches on the funding.
What the Association is set up to do is in the Articles of Incorporation Article II, "1. To encourage a closer relationship between the Magistrates and Commissioners in the Commonwealth of Kentucky. 2. To promote an active interest in good government in civic affairs among the Kentucky Magistrates and Commissioners, to promote good effective legislation for the best well being of the people of the Commonwealth 3. To aid, encourage and promote legislation which will allow Magistrates and Commissioners of Kentucky to more effectively and satisfactorily operate their local government.
As to who operates and how this association is run is found in Article 5 of the Articles of Incorporation "the business of this association shall be conducted by a Board of Directors which the Board shall consist of all the officers of the corporation and the Board of Directors."
Question number four - what the limitations on this agency are?--is an ambiguous question. I do not know what document would satisfy that question other than "that the business of the corporation shall be conducted by the Board of Directors" so the limitations are set by the board and by KRS Chapter 273.
All of the information requested by Judith Arnold was contained in the documents sent her and conversation we had earlier. It was my intention to voluntarily supply this information to Judith Arnold and I did comply with her request.
Mr. Tanner provided Ms. Arnold with a copy of the KMCA's response to the letter of appeal.
We are asked to determine whether the responses of the KMCA were consistent with the requirements of the Open Records Act. For the reasons which follow, we conclude the responses were in substantial compliance with the Act.
The threshold issue presented in this appeal is whether the KMCA is a "public agency. " The KMCA, in its response to the letter of appeal, asserted that it was a private, nonprofit corporation organized under Chapter 273 of the Kentucky Revised Statutes, and thus was not a public agency. 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 percent of the funds expended by it in the Commonwealth from state or local authority. OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114. Where evidence is introduced that an agency receives at least 25 percent of such funds from state or local authority, the Attorney General has deemed it a "public agency. " OAG 88-72; OAG 89-46.
After receipt of this response, we asked the KMCA for additional documentation to determine whether or not it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth from state or local authority funds." KRS 61.870(1)(h). Responding to our request, Mr. Tanner confirmed that the KMCA was a private, not for profit corporation, organized under KRS Chapter 273. He also provided the KMCA's Income Statement from fiscal year 1997-98, which shows the dues collected from counties exceeds the 25 percent of funds from local authority funds. Mr. Tanner indicated that it appeared that the KMCA, under KRS 61.870(1)(h), was subject to the Open Records Act.
We agree. The KMCA's Income Statement from fiscal year 1997-98 shows that it will receive 56 percent of its funding from County Membership Dues. This proportion of its funding clearly exceeds the 25 percent threshold set forth in KRS 61.870(1)(h). Accordingly, we conclude the KMCA, although a private corporation, is a "public agency" for purposes of the Open Records Act and must comply with the requirements of the Act.
To the extent the KMCA did not clearly advise that it was a "public agency, " under KRS 61.870(1) (h), and subject to the Open Records Act, its response was procedurally and substantively deficient. However, in all other respects, the KMCA responses were proper and consistent with requirements of the Act. It timely responded in writing within three business days of receipt of the written request, as required by KRS 61.880(1), and provided Ms. Arnold with the records she requested.
Moreover, we note that a portion of Ms. Arnold's request was for information, rather than for records. This office has repeatedly recognized that requests for information, as distinguished from records, are outside the scope of the open records provisions. 98-ORD-41; OAG 89-77. Our position is premised on the notion that open records provisions address only the inspection of records and do not require public agencies to provide or compile specific information to conform to the parameters of a given request. Nevertheless, the KMCA provided Ms. Arnold with the information she requested and, as evidenced in its response to the letter of appeal quoted above, answered, in detail, questions she raised in her open records request.
Finally, Ms. Arnold raises the question as to whether it was proper for Mr. Tanner to have endorsed a candidate running for a magistrate's or commissioner's office using his title as Executive Director of the KMCA.
This office has a precise and narrow function in connection with the interpretation and application of the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether the agency violated provisions of the Open Records Act. 96-ORD-142. The issue of whether an endorsement of a candidate by the Executive Director of the KMCA under his title was proper, is not an issue capable of resolution under 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.