00-ORD-175

00-ORD-175

September 13, 2000

In re: Randy Skaggs/Tri-County Animal Control Center

Open Records Decision

        The question presented in this appeal is whether Tri-County Animal Control Center is a public agency for purposes of the Open Records Act and is therefore obligated to disclose records relating to its animal control operations. For the reasons that follow, we find that the Center, which derives in excess of 25% of the funds it expends in Kentucky from state or local authority funds, is a public agency within the scope and meaning of KRS 61.870(1)(h), and that its records are subject to inspection to the extent of its public funding.

        On July 31, 2000, Randy Skaggs submitted a written application for public records to Tri-County Animal Control Center in which he requested copies of thirteen categories of records relating, in general, to the Center’s operations. Those records were identified as:

(1) records indicating the names of all owners of Tri-County Animal Control Center; (2) records indicating the names of all members of the board of directors of Tri-County Animal Control Center; (3) records indicating the yearly salary or total amount of compensation paid to each and all owners, board of directors members, employees and/or staff of Tri-county Animal Control Center; (4) a copy of the articles of incorporation filed with the Secretary of State for Tri-County Animal Control Center; (5) all copies of all contracts that Tri-County Animal Control Center presently has with other counties in regard to animal control; (6) financial records such as copies of cancelled checks, deposit tickets, etc. indicating how much each individual county paid Tri-County Animal Control Center for the services it rendered and the amount charged by Tri-County Animal Control Center for each individual animal brought in; (7) a copy of the most recent tax return filed with the Internal Revenue Service by Tri-County Animal Control Center; (8) records indicating the total number of animals brought to or accepted by Tri-County Animal Control Center, per county it is contracted with, for the entire fiscal year; (9) records indicating the total number of animals brought to or accepted by Tri-County Animal Control Center altogether for the entire fiscal year; (10) records indicating the total number of animals authorized for the entire fiscal year, (11) records indicating the humane method of euthanization utilized by Tri-County Animal Control Center, as substantiated by receipts, invoices, etc. for purchased requisite supplies used in the process of euthanization for the entire fiscal year; (12) total number of animals adopted out altogether for the entire fiscal year; and (13) last but not least, the names, mailing addresses and telephone numbers of the individuals that adopted the dogs of Larry J. Clevenger, Douglas Rhoden, and Don and Mary Bond prior to the minimum five day holding period elapsing as required by Kentucky state law.

Mr. Skaggs’ request went unanswered prompting him to initiate this appeal under authority of KRS 61.880(2).

        In response to this office’s notification of receipt of Mr. Skaggs’ appeal, Michael C. Wilson, an attorney representing Tri-County Animal Control Center, advised the Attorney General that the Center “is not a public institution and does not fall under any known statutory category for which the open records law could reach.”  Mr. Wilson explained that the Center ”is a lawfully constituted corporation and does not enter into contracts with governmental agencies.”  Continuing, he observed:

What Mr. Skaggs seems to be saying is that if any part of your revenues come from governmental agencies, then he has the right to receive from you complete disclosure of all of your business records. This is not supported by the open records law. We know that IBM probably does some business with the Commonwealth of Kentucky. Because they do, Mr. Skaggs’ position would be that he is entitled to all of their records too.

In closing, Mr. Wilson noted that the individuals on whose behalf Mr. Skaggs submitted his appeal are currently engaged in litigation against Tri-County Animal Control Center, and the requested records are available, if at all, through the Rules of Civil Procedure. Noting that Mr. Skaggs’ request implicated “thousands of pages,” Mr. Wilson asked that if the Attorney General deemed the records identified in the request open records subject to public inspection, that he assess Mr. Skaggs a $1 per page copying charge.

        Following commencement of this appeal, this office contacted Mr. Wilson in an effort to supplement the record. Pursuant to KRS 61.880(2)(c), we asked that the Center provide additional documentation to substantiate its position that it is not a public agency for purposes of the Open Records Act, specifically, financial records reflecting the amount of funds the Center derives from state or local authority funds. Mr. Wilson verbally acknowledged that the Center derives a majority of its funds from these sources, but declined the invitation to supplement the Center’s response, or advance other arguments in support of its denial of Mr. Skaggs’ request.

        Having established that Tri-County Animal Control Center “derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds,” we find that it is a public agency as defined in KRS 61.870(1)(h). Accordingly, “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“ the Center are public records. KRS 61.870(2). The only exception to this all-encompassing definition that the Open Records Act recognizes is the exception for “records owned or maintained by or for [the Center] that are not related to functions, activities, programs, or operations funded by state or local authority.”  It is the opinion of this office that the first eleven of the thirteen categories of records identified in Mr. Skaggs’ request directly relate to functions, activities, programs, or operations funded by state or local authority, and copies of these records must be mailed to Mr. Skaggs upon prepayment of a reasonable copying charge not to exceed ten cents per page, and postage charges. KRS 61.872(3)(b); KRS 61.874(1) and (3); Friend v. Rees, Ky. App., 696 S.W.2d 325 (1985) (holding ten cents a copy to be a reasonable fee for reproducing standard hard copy records); 98-ORD-95; 96-ORD-271; 92-ORD-1491.

        We do not believe that the Center is obligated to honor requests 12 and 13 inasmuch as these requests are improperly framed as requests for information rather than records. Neither the Center, nor any other public agency governed by the provisions of the Open Records Act, is required to compile information to conform to the parameters of a given request. See e.g., 97-ORD-186; 96-ORD-150; 95-ORD-131. There is, of course, no impediment to Mr. Skaggs resubmitting requests 12 and 13 as properly framed requests for records.

        The fact that Mr. Skaggs may be working in concert with individuals currently engaged in litigation with the Center does not alter our conclusion. This office has long recognized that the presence of litigation does not relieve a public agency of its duties under the Open Records Act. 96-ORD-138; OAG 89-65; OAG 82-169 (holding that although open records provisions should not be used by parties to litigation as a substitute for requests under discovery, there is no indication in the Open Records Act that an agency’s obligations under the Act are suspended in the presence of litigation). Moreover, Mr. Wilson does not assert that Mr. Skaggs is a party to the litigation. Thus, any limitation imposed on a party’s right of access by operation of KRS 61.878(1),¹ does not apply to Mr. Skaggs. See, Department of Corrections v. Courier-Journal and Louisville Times, Ky. App., 914 S.W.2d 349 (1996). The Tri-County Animal Control Center must therefore promptly furnish Mr. Skaggs with copies of the records identified in categories one through eleven of his request, but may await prepayment of reasonable copying and postage charges.

        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 proceedings.

Albert B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#479

Distributed to:

Randy Skaggs

P.O. Box 1

Webbville, KY 41180

Don Grubb

Tri-County Animal Control Center

HC 60, Box 17140

Oldtown, KY 41144

Michael C. Wilson

850 Diederich Blvd.

Russell, KY 41169