Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether The Center for Women and Families, Inc. is a public agency within the meaning of KRS 61.870(1), and therefore violated the Kentucky Open Records Act in denying the request of Antoinette C. Taylor to inspect specified personnel records as well as "All records" related to "the case of Alice Bockman v. The Center for Women and Families, KCHR Complaint No. 3332-E," and "the case of Mary Touray v. The Center for Families and Children, KCHR Complaint No. 4854-E." Based upon the evidence of record, this office concludes that The Center is a private non-profit corporation which derives less than 25 percent of the funds expended by it in the Commonwealth of Kentucky from state or local authority funds, and does not otherwise fall within the parameters of KRS 61.870(1)(a) through (k). Accordingly, The Center did not violate the Act in declining to honor Ms. Taylor's request.
By letter directed to Jane Burks, President, on March 3, 2005, Ms. Taylor requested to inspect all records that do "not contain information of a personal nature or a clearly unwarranted invasion of personal privacy, but not limited to job titles, departments, education histories, salaries, etc. (sic)" on 13 named employees (both current and former) of The Center, as well as records related to the specified cases. Responding on behalf of The Center, Laurie Goetz Kemp, attorney, advised Ms. Taylor that the requested documents "do not fall within this provision of the statute." In addition, Ms. Kemp notified Ms. Taylor to "propound discovery requests to the Center through [her] office" if the records are being sought "in the course of [her] litigation against the Center." By letter dated June 4, 2005, Ms. Taylor initiated this appeal from The Center's denial of her request because the records requested "are open to the public and The Center receives at least 25% of [its funding from the state]."
Upon receiving notification of Ms. Taylor's appeal from this office, Ms. Kemp responded on behalf of The Center. To begin, Ms. Kemp advises this office that she represents The Center in a lawsuit currently pending against The Center filed by Ms. Taylor. As observed by Ms. Kemp, it "is from that litigation that Ms. Taylor sent an open records request to The Center for Women and Families seeking a variety of personnel information on a number of employees as well as information relating to records arising from charges filed by former employees." According to Ms. Kemp, The Center "is not obligated to produce the requested information under the Open Records Act as it does not receive the requisite percentage of funding" to be considered a public agency. Of the "$ 5.2 million budget, less than $ 750,000 is state funded, far less than the 25% [Ms.] Taylor represents and [KRS 61.870(1)] requires." 1 Because Ms. Taylor could attempt to acquire the requested information and records via the subject litigation if not for the fact that "a significant portion of the information sought is not discoverable through this litigation," Ms. Kemp contends that Ms. Taylor's "attempt to utilize the Open Records [Act] is simply a means to circumvent" the Federal Rules of Civil Procedure and "discovery limitations set forth in the trial."
Based upon the limited and conflicting evidence of record, this office was unable to resolve the threshold issue of whether The Center is properly characterized as a "public agency" for purposes of the Open Records Act. By letter directed to Ms. Kemp on July 12, 2005, the Attorney General therefore requested that Ms. Kemp "provide supporting documentation, including the current annual budget" for The Center, to this office for review pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. 2 In addition, this office posed the following questions to Ms. Kemp based upon KRS 61.870(1):
1) How did The Center originate? More specifically, was The Center created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act?
2) Who are the members of The Center's governing body and how are they appointed? Do any of those members hold public office and if so, what offices do those members hold?
3) Was The Center established or created by a public agency or is it controlled by a public agency?
4) Does The Center currently derive any funds expended by it in the Commonwealth of Kentucky from state or local authority funds per KRS 61.870(1)(h)?
In addressing those questions relating to the source(s) of funding for The Center, Ms. Kemp provided this office with a copy of the "Financial Statements and Independent Auditors' Report" for "June 30, 2004 and 2003" as well as an itemized balance sheet reflecting the "specific breakdown of income." As for the history of The Center, Ms. Kemp advises this office as follows:
. . . [The] Center for Women and Families actually began in 1912 as a YWCA facility in the Louisville area. Beginning in 1975, a rape crisis program was offered as well as a creative employment program to assist in non-traditional job training and placement [for] lower income women. In 1977, a domestic violence program was opened as the first domestic violence shelter in Kentucky. For years The Center operated as the Young Women's Christian Association of Louisville and Jefferson County. In 1989 The Center officially changed its name to The Center for Women and Families, Inc. Since that time, The Center has continued to operate as a private non-profit agency serving fourteen counties in Kentucky and Indiana. This is a private entity not created by statute, Executive Order, ordinance, resolution or other legislative act.
Attached to Ms. Kemp's response are copies of the original and amended Articles of Incorporation documenting the evolution of The Center. Also attached is a list of the 2004-2005 Board of Directors for The Center. As evidenced by the list, the Directors include "doctors, attorneys, corporate representatives, and civic volunteers." Under the current by-laws, the Board "is to consist of not less than eighteen and no more than thirty-three individuals. Three of the Directors are at-large." Each Director is elected by the Board with a nominating committee making recommendations, and holds office for three years "subject to qualification[s] and ability." To The Center's knowledge, "none of the current Directors hold public office. "
With respect to the third question, Ms. Kemp reiterates that The Center "was established as a private corporation for charitable purposes originally through the YWCA of Louisville and eventually as [The Center]." With respect to the source(s) of funding "as outlined in KRS 61.870(1)(h), and the 2003-2004 budget, actual income from the Commonwealth of Kentucky was $ 692,835.00 from a total budget of $ 6,239,523.93" as evidenced by the financial statements of record. "Even if contributions and funding from the Louisville Metro or Louisville Jefferson County programs are added [those funds are encompassed by "state or local authority funds"], the total still comes to just over $ 950,000.00, again far below the 25% threshold. " Because a review of the record validates The Center's position, this office concludes that The Center is not a "public agency" for purposes of the Open Records Act.
In relevant part, KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by [the Open Records Act] , and suitable facilities shall be made available by each public agency for the exercise of this right." Resolution of the question presented hinges upon whether the requested records are public records within the meaning of KRS 61.870(2), 3 which, in turn, depends upon whether The Center is a public agency under KRS 61.870(1). Our analysis necessarily begins with the broad definition of "public agency" codified at KRS 61.870(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, ordinances, 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 where 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 the cited definitional provisions, the entity is subject to the Open Records Act. Pursuant to Article II, Section 2.1 of the 2003 "Amended and Restated By-laws" of The Center:
2.1 No Capital Shares. The Corporation shall have no capital shares or shareholders, and its business and affairs shall not be conducted for private pecuniary gain or profit, nor shall any of its profit or property inure to the incorporators thereof, nor to any officer or director thereof, except as otherwise provided in Section (2)(a) of Article II of the Corporation's Articles of Incorporation with respect to compensation for services rendered, but the entire gain, profit, net earnings and property of the Corporation shall be devoted exclusively to the charitable and other uses and purposes set out in Article II of its Articles of Incorporation.
A review of the previous Articles of Incorporation reveals that private non-profit status and a charitable purpose have been the common themes since The Center's inception. In our view, the only provisions which are potentially implicated on the facts presented are KRS 61.870(1)(f), (g), and (h). On appeal, The Center expressly indicates that it is a "private entity not created by statute, Executive Order, ordinance, resolution, or other legislative act, " as required for (1)(f) to apply, and reiterates that it was "established as a private corporation for charitable purposes, " rather than being created or controlled by a public agency, as required for (1)(g) to apply. Because the evidence of record supports The Center's position on both counts, the remaining issue is whether The Center qualifies as a public agency per KRS 61.870(1)(h).
Relying upon KRS 61.870(1)(h), the Attorney General has consistently recognized that "a private agency does not come within the purview of the Open Records Act unless it derives at least twenty-five percent of the funds expended by it in the Commonwealth from state or local authority funds." 97-ORD-114, p. 1; 95-ORD-79. In other words, the Open Records Act applies to private non-profit corporations such as The Center only if the corporation receives 25 percent or more of its funding from state or local authority funds. 05-ORD-012; 05-ORD-097; 02-ORD-119; 99-ORD-152. When evidence has been introduced that a corporation derives less than 25 percent of its funding from state or local authority, as is the case here, the Attorney General has held that the corporation cannot properly be characterized as a public agency. 05-ORD-097; 99-ORD-152; 96-ORD-127; 93-ORD-90. Because the evidence of record validates The Center's calculation as to the percentage of funds derived from state or local authority, this office finds that The Center does not meet the 25 percent threshold of KRS 61.870(1)(h). That being the case, The Center is not a "public agency" within the meaning of KRS 61.870(1), and is therefore 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.
Antoinette C. Taylor1827 Oakwood DriveShelbyville, KY 40065
Jane Burks, PresidentThe Center for Women and Families226 West Breckinridge StreetP.O. Box 2048Louisville, KY 40201-2048
Laurie Goetz KempWoodward, Hobson & Fulton, LLP101 South Fifth Street2500 National City TowerLouisville, KY 40202-3175
Footnotes
Footnotes
1 Contrary to The Center's assertion, the relevant inquiry per KRS 61.870(1)(h) is whether The Center derives at least twenty-five percent of its funds from "state or local authority funds." (Emphasis added).
2 KRS 61.880(2)(c) provides:
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation.
Likewise, 40 KAR 1:030, Section 3 provides:
Additional documentation. KRS 61.846(2) and 61.880(2) authorize the Attorney General to request additional information from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered.
3 Pursuant to KRS 61.870(2), "public record" means:
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.