Request By:
Robert Dobson, # 173228
Eastern Kentucky Correctional Complex
200 Road to Justice
West Liberty, KY 41472Joseph Theriot, Director
St. Patrick Dismas Charities
1301 West Market Street
Louisville, KY 40202Ian T. Ramsey
Stites & Harbison PLLC
400 W. Market Street, Suite 1800
Louisville, KY 40202-3352
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Dismas Charities, Inc. violated the Kentucky Open Records Act in failing to respond upon receipt of Robert Dobson's request "To 'REVIEW' the Surveillance Video according to the Date and Time of the ALLEGED INCIDENT AGAINST ME." More specifically, the sole question presented is whether Dismas Charities, Inc. is a "public agency" for purposes of the Open Records Act. Because Dismas Charities, Inc. does not derive at least twenty-five percent (25%) of the funds expended by it in the Commonwealth of Kentucky from state or local authority funds, nor otherwise fall within the parameters of KRS 61.870(1)(a)-(k), this office finds that Dismas Charities, Inc. is not a public agency. Accordingly, Dismas Charities, Inc. is not statutorily obligated to honor Mr. Dobson's request.
By letter dated March 9, 2006, Mr. Dobson initiated this appeal from the apparent denial of the identical requests which he directed to Dismas on January 17, 2006, and February 16, 2006, respectively. Upon receiving notification of Mr. Dobson's appeal from this office, Ian T. Ramsey, attorney, responded on behalf of Dismas Charities, Inc. Focusing exclusively upon the threshold issue of whether Dismas is a public agency, Mr. Ramsey correctly observes:
Dismas is a private not-for-profit national provider for community corrections and is not a public agency as defined by KRS 61.870(1)(h).
On June 21, 2002, the Office of the Attorney General issued its Open Records Decision 02-ORD-119 in a matter having Appeal Log Number 2002000241. On page three of this Decision, the Office of the Attorney General found that Dismas "is not a public agency within the meaning of KRS 61.870(1) and therefore has no obligations under the Act."
I have confirmed that, for fiscal year ending 2005, Dismas derived 19 percent of its funds from Kentucky state or local authorities. As such, consistent with KRS 61.870(1)(h), [and] the analysis provided by OAG 84-237, and 02-ORD-119, Dismas is a private company not receiving more th[a]n 25 percent of its funds from Kentucky state or local authorities, and therefore, is not subject to the Open Records Act.
In reply, Mr. Dobson argues that "Dismas was acting as an agency of the Ky. Dept. of Corrections, housing state inmates" and was "therefore subject to Open Records where a criminal complaint occurred" at the time of the alleged incident.
On appeal, Mr. Ramsey confirms that Dismas derived only "19 percent" of the funds expended by it in the Commonwealth from state or local authority funds during the fiscal year ending in 2005; this appeal consequently presents no reason to depart from governing precedent. To the contrary, the reasoning of 02-ORD-119, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. See also 05-ORD-012 (holding that Kentucky Alternative Programs II, Inc. is not a public agency within the meaning of KRS 61.870(1)(a)-(k) and therefore did not violate the Open Records Act in refusing to honor the request at issue). Based upon the evidence of record, this office again concludes that Dismas Charities, Inc. is not a public agency for purposes of the Open Records Act; it necessarily follows that Dismas not violate the Act in failing to respond upon receipt of Mr. Dobson's requests in accordance with KRS 61.880(1).
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.