Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Experian, NCAC, violated the Open Records Act in failing to respond to the open records request of Anthony Mattingly for a copy of his credit report. We conclude that, because Experian, NCAC, is not a "public agency, " as defined by KRS 61.870(1), the Act does not apply to the private corporation. Thus, Experian's failure to respond to Mr. Mattingly's request would not constitute a violation of the Open Records Act.
The sole issue presented in this appeal is whether Experian, NCAC, is a public agency within the meaning of KRS 61.870(1), and therefore subject to the Open Records Act. For the reasons set forth below, we conclude that Experian, NCAC, is not a public agency and is not subject to provisions of the Act.
KRS 61.870(1) defines "public agency as follows:
(1) "Public agency" means:
(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), (i), or (j) of this subsection;
(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 (j) 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.
This office has consistently recognized that a private corporation comes within the purview of the Open Records Act only if it derives at least twenty-five percent of its funds from state or local authority. 96-ORD-15; 97-ORD-114. Normally, the burden of proof is upon the private corporation to establish that it is not a "public agency" subject to the Open Records Act. However, in this instance, it is clear that Experian, NCAC, a national consumer credit bureau and credit reporting service that provides individuals with copies of their personal credit reports, is a private corporation that does not fall within the definition of "public agency, " as defined by KRS 61.870(1). See: http//www.experian.com.
Accordingly, it is the decision of this office that Experian, NCAC, is not a public agency and, thus, is not subject to the provisions of the Open Records Act. Notwithstanding the foregoing, Experian has advised this office that upon receipt of Mr. Mattingly's complete identification information and his specific disputes, it will research and respond appropriately to his concerns.
Anthony Mattingly # 115494Northpoint Training CenterP.O. Box 479Burgin KY 40310
Executive DirectorExperian, NCACP.O. Box 9595Allen TX 75013
Steve DurhamDepartment of CorrectionsOffice of General Counsel2439 Old Lawrenceburg RoadFrankfort KY 40602