Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Examinetics, Inc., formerly Exemplar International, violated the Open Records Act in the disposition of Billy Bailey's request for records relating to his urinalysis. For the reasons that follow, and based upon evidence presented that it does not receive at least twenty-five percent (25%) of its funding from state or local authority funds, we find that Examinetics, Inc., is not a public agency for open records purposes and that it therefore did not violate the Act in the disposition of Mr. Bailey's request.
In his letter of appeal, Mr. Bailey argues that Examinetics "is a contract agency with the Department of Corrections, . . . [and has] produced records that pertain specifically to . . . [Mr. Bailey] concerning a urinalysis test . . . performed . . . on November 12, 2004, by Advanced Technology Network . . ., a subcontractor of [Examinetics] . . . ." Its records, he concludes "are public records, open to inspection . . . ."
By letter dated April 29, 2005, Department of Corrections Staff Attorney Emily Dennis, who received notification of Mr. Bailey's appeal because he is confined in a state correctional facility, advised this office that Examinetics, Inc., "is not a 'public agency' within the meaning of KRS 61.870(1)" because it does not derive "'at least twenty-five (25%) percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds' under KRS 61.870(1)(h)." Nor, Ms. Dennis added, does Examinetics "manage correctional facilities under contract with the Department of Corrections such that its records are, in general, treated as public records within the meaning of KRS 61.870(2). See KRS 197.510(7)." In sum, she asserted, "[t]he obligation to respond . . . [to an open records request] does not extend to a contractor which retains its status as a private entity, unless the private entity is publicly funded within the meaning of KRS 61.870."
On May 10, 2005, this office received a letter from Troy R. Heppner, Chief Financial Officer for Examinetics, Inc. Mr. Heppner advised that "the total annual revenue that is realized from the Commonwealth of Kentucky represents less than 5% of [Examinetics'] total annual revenues." Based on this statement, we conclude that records generated by Examinetics, Inc., including records relating to Mr. Bailey's urinalysis, are not public records for open records purposes.
KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person . . . and suitable facilities shall be made available by each public agency for the exercise of this right." The term "public record" is defined at KRS 61.870(2) as:
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 a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
Resolution of the question whether the records of Examinetics, Inc., are public records for open records purposes turns on whether the corporation 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 Examinetics, Inc., 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), and then only to the extent of its public funding. KRS 61.870(2). See, 96-ORD-15; 97-ORD-114; 01-ORD-134. Where evidence is introduced that the corporation receives less than twenty-five percent (25%) of its funds from state or local authority, the Attorney General has held that it cannot properly be characterized as a public agency. 93-ORD-90; 96-ORD-127.
Our review of the information furnished by Mr. Heppner indicates that Examinetics, Inc., receives less than five percent of its annual revenue from the Commonwealth of Kentucky and its political subdivisions. This proportion of public funding does not meet the twenty-five percent (25%) threshold established in KRS 61.870(1)(h). In the absence of evidence to the contrary, we assume the truthfulness of Mr. Heppner's statement. We therefore conclude that Examinetics, Inc., is not a "public agency" within the meaning of KRS 61.870(1)(h), and is not subject to the Open Records 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 proceeding.
Billy Bailey, # 160044-SMUNorthpoint Training CenterP.O. Box 479Burgin, KY 40310-0479
Troy R. HeppnerJohn ThomasExaminetics, Inc.8900 Indian Creek Parkway, Suite 500Overland Park, KS 66210
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services2439 Lawrenceburg RoadP.O. Box 2400Frankfort, KY 40602-2400