Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Rowan Water, Inc., a water association created as a nonprofit corporation under Chapter 273 of the Kentucky Revised Statutes, is a public agency for purposes of the Open Records Act and thus obligated to disclose the water bills issued to the City of Olive Hill in June and July of 1999. For the reasons that follow, and based on evidence presented to this office that it does not receive at least 25 percent of its funding from state or local authority, we conclude that Rowan Water, Inc., is not a public agency within the meaning of KRS 61.870(1), and its records are not subject to public inspection.
KRS 61.872(1) provides that "all public records shall be open for inspection by any person . . . and suitable facilities shall be made available by each public agency for the exercise of this right." The term "public record" is defined at KRS 61.870(2) as:
all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
Resolution of the question whether the records of Rowan Water, Inc., are public records, and must be made available for public inspection, turns on whether the water association is a "public agency" as defined in KRS 61.870(1)(a) through (k).
The term "public agency" is broadly defined to include:
(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 policymaking 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, 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 here each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]
If an entity falls within one or more of these definitional sections, it is subject to theOpen Records Act. It is apparent that Rowan Water, Inc., does not qualify as a public agency under KRS 61.870(1)(a), (b), (c), (d), (e), (f), (g), (i), (j), or (k), and that it therefore may be characterized as a "public agency" for purposes of the Open Records Act only if it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." KRS 61.870(1)(h).
The Attorney General has long recognized that the Open Records Act applies to a private nonprofit corporation if it receives 25 percent or more of its funds from state or local authority. OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 94-ORD-98; 96-ORD-99; 97-ORD-65. Where evidence is introduced that the corporation receives less than 25 percent of its funds from state or local authority, the Attorney General has held that it cannot properly be characterized as a public agency. 93-ORD-90; 96-ORD-127.
This office has opined that a water association organized under KRS Chapter 273 as a nonprofit corporation is not a political subdivision, agent of a political subdivision, or special district. OAG 77-524. Such corporations are not public agencies for purposes of the Open Meetings Act. 96-OMD-180. As noted, such corporations are public agencies for purposes of the Open Records Act only if they derive at least 25 percent of their funds from state or local authority. OAG 78-395; OAG 91-48.
Our review of the information furnished to us by Glen A Teager, Executive Director of Rowan Water, Inc., discloses that the water association "receives little or no state or local authority funds in order to run its business." The proportion of its public funding therefore does not meet the 25 percent threshold established in KRS 61.870(1)(h). In the absence of clear and convincing evidence to the contrary, we assume the truthfulness of this statement. We therefore conclude that Rowan Water, Inc., is not a "public agency" within the meaning of KRS 61.870(1), and is not subject to the Open Records Act.
Although Rowan Water, Inc., is not a public agency, the City of Olive Hill obviously is. Mr. Rock may wish to submit an open records request to the city for a copy of its June and July, 1999, water bills, or financial records documenting payment of those bills. Consistent with the principle that "amounts paid from public coffers are perhaps uniquely of public concern," OAG 90-30, p. 3, such records are subject to public inspection.
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.