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 Dismas Charities, Inc., a private, non-stock, not-for-profit national provider of community corrections and social services, is a public agency for purposes of the Open Records Act, and thus obligated to honor Melanie Nehmzow's May 7, 2002 request for records relating to Dismas' re-use of plastic Alco tips for inmates required to undergo breathalyzer examinations and her May 13, 2002 request for records relating to Dismas' work release program. For the reasons that follow, we find that because it does not derive at least twenty-five percent of its funds from state or local authority funds, and does not otherwise fall within the parameters of KRS 61.870(1)(a) through (k), Dismas Charities, Inc. is not a public agency under the Act and is not obligated to disclose the requested records.
In a supplemental response directed to this office following commencement of Ms. Nehmzow's appeal, Ian T. Ramsey, representing Dismas Charities, Inc. in this matter, advised:
Dismas maintains contracts to provide community corrections and social services within the Commonwealth of Kentucky as well as in other states. Dismas projects that for fiscal year 2002 it will receive $ 18,135,908 for its services. Of this amount, Dismas projects that it will receive $ 4,086,967, or 22 percent of its funds, from Kentucky state or local authorities.
Relying on OAG 84-237 "and its progeny," Mr. Ramsey concluded that "Dismas is a private company not receiving more than 25 percent of its funds from Kentucky state or local authorities, and, therefore, is not subject to the Open Records Act. "
Based on this record, it is clear that Dismas Charities, Inc. does not reach the twenty-five percent threshold found at KRS 61.870(1)(h). That statute provides that for purposes of the Open Records Act the term "public agency" includes "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. " This provision is premised on the notion that "[a]s far as open records are concerned, it is . . . the policy of the Legislature that wherever public funds go, public interest follows." OAG 76-648, p. 2. It is "intended to insure that bodies which received twenty-five percent or more of their funds from state or local authority funds [are] held publicly accountable for those funds." 95-ORD-65, p. 4. It is not intended to subject to public scrutiny the records of bodies that receive state or local authority funds in an amount less than twenty-five percent.
We acknowledge that the amount of state or local funds Dismas Charities, Inc. receives closely approaches the twenty-five percent threshold found in KRS 61.870(1)(h). Nevertheless, we believe that because it was established as a private, not-for-profit corporation, and because it does not receive the requisite state or local funding to expose it to public scrutiny, Dismas Charities is not a public agency under the Open Records Act. Accord, 93-ORD-90 and 95-ORD-65; compare 97-ORD-65.
In OAG 88-64, the office acknowledged its limitation in resolving open records disputes. At page two of that opinion, we observed:
Given the limited role for the Attorney General contemplated by the statutes and the office's limited resources, the Attorney General cannot truly be a 'judge' in the sense of reviewing volumes of documents, listening to testimony, considering briefs, etc. In the final analysis, the application and meaning of the Open Records Act can only be determined by a court of law.
Mr. Ramsey refutes Ms. Nehmzow's assertion that "Dismas Charities is a 'public' agency because they receive more than 25 percent of their [sic] funds from State and Federal Agencies." Federal funding is not factored into an analysis under KRS 61.870(1)(h) and the weight of the evidence presented otherwise supports Mr. Ramsey's position. We therefore find that Dismas Charities, Inc. is not a public agency within the meaning of KRS 61.870(1) and therefore has no obligations under the Act.
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.
Melanie Nehmzow1636 Blue Horse AvenueLouisville, KY 40206
Ian T. RamseyStites & Harbison PLLC400 West Market Street, Ste. 1800Louisville, KY 40202-3352
Jan KempfDismas Charities, Inc.2500 Seventh Street RoadLouisville, KY 40208