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 Louisville - Jefferson County Public Defender Corporation's (Corporation) denial of C. David Emerson's open records requests for a copy of the Corporation's 1999-2000 fiscal budget.
Responding on behalf of the Corporation, Daniel T. Goyette, Public Defender, denied the requests on several grounds.
First, he asserted that, because Mr. Emerson had prevailed on his argument that the Corporation was neither a public entity nor a de facto state agency in litigation before the National Labor Relations Board (NLRB), he was judicially estopped from claiming that it was a public agency for purposes of the Open Records Act.
Secondly, Mr. Goyette argued that since the matter was in litigation the requested record was exempt under KRS 61.878(1).
Finally, Mr. Goyette argued that, because the information sought by Mr. Emerson involved and related to individuals that are not public employees, its disclosure would constitute an unwarranted invasion of personal privacy and, thus, was exempt from disclosure under KRS 61.878(1)(a)
For the reasons that follow, we conclude that the Corporation improperly withheld from disclosure the requested 1999-2000 fiscal budget.
The threshold issue presented in this appeal is whether the Corporation is a "public agency. " In response to our request for information on this issue, Mr. Goyette advised that the Corporation was a non-stock, non-profit, charitable, and educational corporation organized under Chapter 273 of the Kentucky Revised Statutes. He stated that the Corporation could best be described as "a private corporation performing a public service that is required by state statute. As such, any public grants to the corporation no longer constitute public monies once given."
Resolution of the question whether the records of the Corporation are public records, and must be made available for public inspection, turns on whether the organization 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 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 the Open Records Act. It is apparent that the Corporation 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).
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.
Addressing this funding issue, Mr. Goyette acknowledged that the bulk of the Corporation's funding came from public sources. A copy of the PLAN FOR THE DEFENSE OF INDIGENTS JEFFERSON COUNTY COMMONWEALTH OF KENTUCKY FISCAL YEAR 1999-2000, provided by Mr. Goyette, indicates that the Corporation received $ 2,517,200 from state Department of Public Advocacy and $ 1,225,000 from Jefferson County for the fiscal year. Other documentation provided by Mr. Goyette indicates that the funds provided by Jefferson County alone represents one third of the Corporation's operating budget.
Because it receives more than 25 percent of its funds from state or local authority, we conclude the Corporation, although a private corporation, is a "public agency" for purposes of the Open Records Act and must comply with the requirements of the Act. At page 2 of OAG 76-648, this office observed that "as far as open records are concerned, it is apparently the policy of the Legislature that wherever public funds go, public interest follows." The budget of the Corporation should be made available for Mr. Emerson's inspection.
The question of whether the Corporation is a public or private corporation for purposes of a NLRB proceeding is not relevant to the issue of whether the organization is a "public agency" subject to the application of the Open Records Act, under KRS 61.870(1). Accordingly, Mr. Emerson is not judicially estopped from claiming the Corporation is a public agency for purposes of the Open Records Act.
Next, we address the Corporation's argument that the requested record is exempt from disclosure under KRS 61.878(1) because of the presence of ongoing litigation between Mr. Emerson's client and the Corporation.
This office has previously recognized that the Open Records Act should not be used by parties to litigation as a substitute for discovery. In OAG 89-65, this office recognized that:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880.
However, we further noted in that opinion that we did not intend to:
suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery procedures.
KRS 61.878(1), which codifies the exceptions to public inspection, provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure [.]
(Emphasis added.) By defining public records to exclude those that would be within the scope of privilege against discovery in a civil action, the General Assembly has also indirectly confirmed that a public agency's duty under the Open Records Act is not suspended in the presence of litigation. 96-ORD-138.
We therefore see no impediment to the use of the Open Records Act to secure nonexempt records despite the presence of litigation. Recognizing that there are limitations inherent in obtaining records through this mechanism, when those records are to be used in litigation, we nevertheless observed in OAG 82-169:
Although there is litigation in the background of the open records request under review, the requester . . . stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records.
Thus, we conclude the Corporation improperly denied the request for a copy of its 1999-2000 fiscal budget because of the presence of litigation between the same parties involved in the open records request.
In addition to the above, the Corporation also denied Mr. Emerson's request on the basis that the record contained information which involved and related to the employees of the Corporation, who were not public employees, and disclosure of this information would constitute a clearly unwarranted invasion of their personal privacy.
As Mr. Goyette acknowledges, the bulk of the Corporation's funding comes from state or local authority. To the extent these employees' salaries are publicly funded, the public has a legitimate interest in records pertaining to their employment, such as their position descriptions, salaries, resumes (reflecting prior work experience, educational qualifications, and information regarding ability to discharge the responsibilities of employment), and disciplinary actions stemming from job-related misconduct. 97-ORD-140. However, matters of a purely personal nature, such as home addresses, social security numbers, medical records, marital status, etc., could be withheld, as disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a); OAG 76-275; OAG 91-48; 94-ORD-91; 97-ORD-140.
If the salaries are paid with public funds, the public's interest in monitoring the expenditure of those funds outweighs the Corporation employees' expectation of privacy. The Corporation improperly denied access to the requested record under authority of KRS 61.878(1)(a).
Finally, Mr. Goyette argues that because the spouse of an attorney in the Attorney General's office participated in the union organizing campaign in favor of the union represented by Mr. Emerson, a conflict of interest exists and outside counsel must be appointed to consider this open record appeal. We do not agree.
KRS 61.880(2) assigns the Attorney General the role of dispute mediator in an open records appeal. Concerning this role, in OAG 92-10, we observed:
The statute directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the denial. It does not provide for the appointment of an "independent authority" under circumstances which might appear to compromise his impartiality, or indeed, under any circumstances.
Also, if this matter is appealed to the appropriate circuit court - which could have been done without requesting the opinion - that court will make a de novo review of the evidence. [Citations omitted.] Therefore this opinion will not prejudice the requesting party in any way.
This office has been called upon in past appeals involving the Attorney General's review of his own agency's denial of an open records request. In such appeals, we assure the appealing party that we have endeavored to research the law thoroughly and to apply the law to the facts presented without favoritism or bias. OAG 91-35. Moreover, KRS 61.880(2) directs the Attorney General to review open records appeals without reference to the identity of the requester or to the agency issuing the appeal. 97-ORD-117. In these appeals, we strive to maintain absolute impartiality in discharging this duty.
Thus, because there is no provision for independent review under circumstances such as presented by Mr. Goyette, and because it is our opinion that no conflict of interest exists, we have considered this appeal without "favoritism or bias. " OAG 91-35. If Mr. Goyette is dissatisfied by the outcome of this decision, he may, as directed below, appeal it to the circuit court.
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.