Opinion
Opinion By: Gregory D. Stumbo,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether CMI, Inc. (CMI) is a "public agency" within the meaning of KRS 61.870(1), and therefore subject to the Open Records Act. We conclude that, because CMI is a private corporation and not a "public agency, " as defined by KRS 61.870(1), the Act does not apply to it. Thus, CMI's failure to respond to Steven De Luca's open records request could not be said to be a violation of the Act.
By letter dated January 19, 2003, Mr. De Luca submitted an open records request to CMI requesting to inspect certain of its records, such as the operating instructions on the Intoxilyzer-Alcohol KY Model 5000EN, CMI Inc. Basic Maintenance Manuals, records identifying individuals having enrolled, taken, or attended CMI training program, which was paid for by funds from state or local authority funds, CMI books of accounts of all receipts and disbursements, and the sworn statement of CMI to the Finance and Administration Cabinet that CMI had not knowingly violated any provision of the campaign violation laws of the Commonwealth.
In his letter of appeal, Mr. De Luca stated that his request went unanswered and asks this office to review CMI's failure to respond and to hold it accountable under the Open Records Act.
After receipt of notification of the appeal and a copy of Mr. De Luca's letter of appeal, Allen W. Holbrook, counsel for CMI, provided this office with a response to the issues raised in the appeal. In his response, Mr. Holbrook advised that CMI is a private corporation. In support of this position, he attached the Affidavit of Robert L. Hill, President of CMI. In his affidavit Mr. Hill states that CMI is a private corporation engaged in the manufacture and sale of products and services including breath alcohol instruments, calibration standards, instrument and data base management software, product repair and maintenance services and training which it sells to many law enforcement agencies in several states, including Kentucky. He states that CMI's total sales revenue for products sold in Kentucky, which included sales to both law enforcement agencies and private businesses, was approximately 6.8% from sales and services of its products in 2002, and approximately 8.1% in 2003. He states that any money received by CMI from any public entity in Kentucky was directly from a sale or service contract and further states that CMI does not receive any governmental funding or grants from the Commonwealth of Kentucky or any local government or public agency within the Commonwealth.
The threshold issue in this appeal is whether CMI is a "public agency" as defined by KRS 61.870(1). For the reasons that follow, we conclude CMI is not a public agency subject to the operation and procedural requirements of the Open Records Act.
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% of its funds from state or local authority funds. 92-ORD-1114; OAG 88-61; OAG 81-377. Those opinions were premised on the following definition of "public agency" set out in KRS 61.870(1)(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.
As noted in Mr. Hill's affidavit, CMI's total sales revenue for products sold in Kentucky was approximately 6.8% from sales and services of its products in 2002, and approximately 8.1% in 2003. These percentages of sales revenue included sales to both law enforcement agencies and private businesses and falls well below the twenty-five percent threshold to qualify as a "public agency, " pursuant to KRS 61.870(1)(h). We therefore conclude that CMI, Inc., is not a "public agency" within the meaning of KRS 61.870(1), and is not subject to the Open Records Act. Accordingly, it is not required to either release its records, or to adhere to procedural requirements, in response to a request for its records under the Open Records Act. 00-ORD-91; 93-ORD-127.
Because the foregoing is dispositive of this appeal, we need not address other bases cited by the CMI in support of its actions relative to Mr. De Luca's request.
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.
Steven De Luca9018 Taylorsville Road # 183Louisville, KY 40299
Robert L. Hill, PresidentCMI, Inc.316 East Ninth StreetOwensboro, KY 40299
Allen W. HolbrookSullivan, Mountjoy, Stainback & Miller. PSC100 St. Ann StreetP.O. Box 727Owensboro, KY 42302-0727