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 actions of the Nabi Biological Medical Center in response to Rickey B. Jones's open records request for a copy of his medical records relating to blood/plasma given by him at the Center during the years of 1988 and 1989.
In his letter of appeal, Mr. Jones stated that he had received neither a written response nor a copy of the medical records he requested. As a result, he appealed to this office to review the Center's actions under the Open Records Act.
After receipt of Mr. Jones's letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal," and a copy of Mr. Jones's letter to the Nabi Biological Medical Center. As authorized by KRS 61.880(1) and 40 KAR 1:030, Section 2, Rodney D. Ford, Senior Director, BioMedical Center Operations, Nabi Corporation, provided this office with a response to the issues raised in the appeal. In his response, Mr. Ford stated:
Nabi has not responded to Mr. Jones's request for his medical records because we do not have any of his medical records. Nabi is a manufacturer of raw product (plasma) that is further manufactured by pharmaceutical companies into medical products. We do not treat any diseases and do not maintain medical records.
In order to obtain additional information and documentation relating to this appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, the undersigned contacted Mr. Ford by telephone to determine whether Nabi Biological Medical Center fell within the definition of a "public agency" , as defined in KRS 61.870(1). Mr. Ford stated that Nabi was a private, publicly traded company. The Nabi Biological Medical Center was one of its operations located in Kentucky. He confirmed that the company did not derive at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds.
In this open records appeal, we address the threshold issue of whether the Open Records Act applies to the Nabi Biological Medical Center. For the reasons which follow, it is the conclusion of this office that the Nabi Biological Medical Center 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.
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 its funds from state or local authority funds. 92-ORD-1114; OAG 88-61; OAG 81-377. Those opinions were premised on the following definition of "public agency" set out in KRS 61.870(1)(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.
As part of a private, publicly traded company which does not derive at least twenty-five (25%) of its funds expended by it in the state from state or local funds, the Center does not fall within the definition of a "public agency" to which the Open Records Act applies. Accordingly, it is not required to either release its records, or to adhere to KRS 61.880(1), in response to a request for its records. 93-ORD-127.
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.