Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Ballard County Economic and Industrial Development Board, Inc., was not a public agency for open records purposes in the fiscal year during which the open records request giving rise to this appeal was filed insofar as it received no state or local authority funds in that year. We find that 04-ORD-222, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue on appeal.
In 04-ORD-222, this office held that because the Ballard County Economic and Industrial Development Board denied receipt of any state or local authority funds in the fiscal year that began on July 1, 2004, and ended on June 30, 2005, and provided documentation supporting this assertion, and because it did not otherwise fall within the parameters of KRS 61.870(1)(a) through (k), the Board was not a public agency. The request that gave rise to 04-ORD-222 was submitted to the Board in October 2004 and our decision issued in November 2004.
The appellants maintain that the Board has received some $ 470,000 from the Paducah-Area Community Reuse Organization (PACRO) and $ 450,000 from the Kentucky Cabinet for Economic Development, but do not indicate in what fiscal year these funds were received. Our KRS 61.880(2)(c) inquiries confirm that the PACRO 1 funds were transferred to the Board "on 10/17/2000, 12/27/2000, 8/27/2001, 12/11/2001, 1/22/2002," and the Cabinet for Economic Development funds were transferred to the Board on June 29, 2004. Thus, in the July 1, 2003, through June 30, 2004, fiscal year the Board was clearly a public agency within the meaning of KRS 61.870(1)(h). Accord, Citizens for a Better Environment, Inc. v. Ohio County Industrial Foundation, Ky. App., 156 S.W.3d 307 (2004).
The request that gives rise to this appeal was submitted on June 5, 2005, a date that falls within the July 1, 2004, through June 30, 2005, fiscal year which was the subject of our decision in 04-ORD-222. As noted, the Board presented proof to this office in the earlier appeal, and the instant appeal, that it received no state or local funds in that fiscal year. Accordingly, we stand on our decision in 04-ORD-222.
Having said this, we note that KRS 61.870(1)(h) speaks to state or local funds "derived" and "expended. " It is reasonably safe to assume that the $ 296,533.75 used for infrastructure work and site preparation and the $ 146,556.94 used for construction, on the project for which the funds were allocated, was expended after June 29, 2004, and over a period of time that may extend to the present. For this reason, we think it appropriate for, if not legally incumbent on, the Board to allow inspection of any nonexempt records "related to functions, activities, programs, or operations funded by state . . . authority," KRS 61.870(2), regardless of the fiscal year in which the funds were received. The Board has acknowledged that $ 6,909.31 in state funds remain in its coffers as of July 8, 2005. Nonexempt records documenting the expenditure of those funds should, in our view, be made available for inspection under the Open Records Act after they are expended and upon presentation of a proper open records request.
We fully concur with the Board in its view that it has no legal obligation under the Open Records Act to entirely "open its books" to public scrutiny. As noted, KRS 61.870(2), when read in tandem with KRS 61.870(1)(h), clearly establish that the term "public record" does not extend to "records owned or maintained by or for a body referred to in . . . [KRS 61.870(1)(h)] that are not related to functions, activities, programs, or operations funded by state or local authority. " As a practical matter, we believe our holding obligates the Board to disclose to the appellants, in response to their June 5, 2005, request, the bids on the spec building for which state funds were expended and any existing bills of lading for that building. The Board is further obligated to disclose records documenting state funds disbursed in fiscal years 2003-2004, 2004-2005, and the current fiscal year. 2 The Board is not obligated to disclose records documenting other sources of funding that are neither state nor local or to create records containing this information.
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.
Charles Allred1208 K.C. Dunn RoadBarlow, KY 42024
Terry L. Simmons, ChairmanBallard County Economic and Industrial Development BoardBallard County CourthouseP.O. Box 276Wickliffe, KY 42086
J. Todd ElmoreNeely & Brien238 North 7th StreetP.O. Box 708Mayfield, KY 42066-0708
Footnotes
Footnotes
1 It is by no means clear that PACRO is a state or local agency within the contemplation of KRS 61.870(1)(h) or that these funds should be calculated into the 25% threshold found in that provision.
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2 The Board is not obligated to create records indicating to whom these funds were disbursed and for what purpose, but we assume that this information will be apparent from the existing records.
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