Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the McDaniels Volunteer Fire & Rescue Department is a public agency for purposes of the Open Records Act, and thus obligated to disclose its records under the Act. For reasons that follow, and based upon evidence presented to this office, we conclude that McDaniels Volunteer Fire & Rescue Department is not a public agency within the meaning of KRS 61.870(1), and its records are not subject to public inspection.
Resolution of the question whether the records of McDaniels Volunteer Fire and Rescue Department are public records, and must be made available for public inspection, turns on whether the Department 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 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), (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[.]
If an entity falls within one or more of these definitional sections, it is subject to the Open Records Act.
It is apparent that McDaniels Volunteer Fire and Rescue Department 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 twenty-five 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.
In a supplemental response, Michael D. Baker, attorney for the Department, provided this office with documentation which indicates that the McDaniels Volunteer Fire and Rescue Department is a nonprofit corporation, created under authority of KRS Chapter 273.
Mr. Baker also provided a letter written to him by Cecil C. Hammons, Service Director of McDaniels Volunteer Fire and Rescue Department, which explained the creation of the Department and addressed questions raised by Mr. Banaszynski in his letter of appeal. In his letter, Mr. Hammons states in part:
From information that has been handed down through the years, we understand that sometime in the early 1970's a school teacher and resident of McDaniels lost his home to a fire because there was no fire department nearby. After the incident he, along with several other residents, decided the area needed a volunteer fire department; so they approached a land owner to provide property on which to construct a building to house fire equipment. The landowner deeded a portion of land to Rough River Fire Department (former name of the department) with the stipulation that should the department cease to operate as a fire department that the property would revert back to his ownership (copy of the deed is enclosed) . To the best of our knowledge, the county provided a 1966 Ford 600 truck that was converted to a tanker. The volunteers provided the pump and other equipment necessary to make the conversion. The 1966 tanker is still in use. The department held bingo to raise funds to build their first fire house which housed the tanker and a 1976 4x4 pick-up used as a brush truck. In 1982 I became involved with the department as a volunteer firefighter. Sometime around 1984 (as I recall) I was asked to assume the responsibilities as fire chief. The fire department vehicles have always been titled jointly to Breckinridge County Fiscal Court and (Rough River Volunteer Fire Department) McDaniels Volunteer Fire and Rescue Department in order for the vehicles to be covered under the county's vehicle and liability insurance. The vehicles are not actually owned by the county because the vehicles have all been purchased with funds collected either from fire dues or donations. The same arrangement applies to all four ambulances purchased with funds derived from fees for ambulance runs. None of the ambulances, medical equipment or supplies have been purchased with any funds provided by Breckinridge County Fiscal Court.
The department changed it's name from Rough River Volunteer Fire Department in the 1980's because another Department in our area (located in Grayson County) was named Falls of Rough Volunteer Fire Department. Most recently, the McDaniels Volunteer Fire and Rescue Department was incorporated under the name McDaniels Fire-Rescue, Inc., a non-profit, non-stock corporation (see attached Articles of Incorporation). The fire department is not "owned" by anyone. The fire department receives no funding from the county to help with purchase or maintenance of equipment. The fire department ceased its bingo operation several years ago due to lack of having enough volunteers to run it. As stated previously, the department operates on collected fire dues and whatever donations are received from area homeowners. Enclosed is a copy of our 1998 report of income and expenses that was mailed to everyone on our subscription list. The department is unable to establish an operating budget because we never know from year to year how much income will be available since the income depends on how many people actually pay their fire dues.
Other documentation provided by Mr. Baker included a letter from Tom Moorman, Breckinridge County Judge/Executive, dated October 21, 1999, advising that "Breckinridge County does not fund any ambulance or fire services within the county. They are strictly volunteer. " A copy of the Fire/Rescue Department's 1998 report of income and expenses indicates that its income was $ 44,112, which was derived solely from dues and donations. A copy of the Report of revenue and expenses for McDaniels Emergency Medical Service, now operating under the corporation, McDaniels Fire-Rescue, Inc., from January 1, 1999 through September 30, 1999, indicates that, out of its income of $ 69,156.51, $ 67,156.51 was derived from insurance and patient payments and $ 2,000 was received from the County for an EMT Class.
96-ORD-120 described various types of fire departments. Addressing volunteer fire departments, we stated:
A fourth type of fire department is a volunteer fire department, sometimes organized as a nonprofit corporation, which is an independent organization, disassociated from the city or county, except insofar as a contractual relationship is concerned. The only way this type of fire department could be considered a public agency is if it derives at least 25% of its funds expended in the state form state or local authority funds. See KRS 61.870(1)(h) and 94-ORD-16, copy enclosed.
Our review of the information furnished to us by Mr. Baker discloses that the McDaniels Volunteer Fire and Rescue Department receives little or no funds from state or local funds. Mr. Hammons's letter indicates that the County did give the Department a 1966 Ford 600 truck at one point and that fire department vehicles are titled jointly with the County in order for the vehicles to be covered under the county's vehicle and county insurance, but that the vehicles are not owned by the County. Mr. Hammons advised that they were purchased with McDaniels Volunteer Fire and Rescue Department funds collected either from fire dues or donations. With the exception of the gift of the 1966 truck, the joint titling of its vehicles for insurance and liability purposes, and the $ 2,000 the County provided the EMS unit for an EMT Class, the Department stated it receives no funds from state or local funds. The Breckinridge County Judge/Executive advised that the County does not fund any ambulance or fire services within the county, as they are all volunteer. The materials provided by Mr. Baker, with the exceptions noted, indicate that the funds upon which the Department operates are from membership dues, donations, ambulance fees, insurance payments, and patient payments.
Based on the evidence presented this office, the McDaniels Fire and Rescue Department is not a public agency pursuant to KRS 61.870(1)(h), as it does not derive at least 25% of the funds it expends in the Commonwealth from state or local authority funds.
It is therefore the decision of the Attorney General that the Open Records Act was not violated by the McDaniels Fire and Rescue Department, as that organization is a nonprofit corporation organized by private individuals and is not subject to the Act. 96-ORD-120. It is not a public agency and it does not receive at least 25% of its funds expended in the state from state or local funds.
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.