Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Louisville Arena Authority (Arena Authority) is a "public agency" subject to the requirements and operation of the Open Records Act and whether it violated the Act by failing to timely respond to a request for copies of records relating to the activities of the Arena Authority. For the reasons that follow, we conclude that the Arena Authority is a "public agency, " as defined in KRS 61.870(1)(i), and subject to the requirements of the Act.
By e-mail dated March 8, 2006, to Mark F. Sommer, General Counsel, Arena Authority, Billy Reed requested the following records:
1. Copies of the public records of W. James Host, chairman of the Arena Authority board, between Oct. 14, the day he officially left state government, and Jan. 30, the date of the first public Arena Authority meeting. We interpret "public records" to mean phone records, e-mail transmissions, meeting notes, handwritten letters or notes, discs, papers, and tapes. These records would include work done at home or any office that was loaned to Mr. Host during this time.
2. A list of all meetings during that time frame that involved W. James Host and or more, of the following parties: Arena Authority members, University of Louisville President Jim Ramsey and Athletics Director Tom Jurich, President Mike McCallister of Humana, former publisher Ed Manassah of the Courier-Journal, attorney Ed Glasscock of Frost Brown Todd, Secretary Robbie Rudolph of the Finance Cabinet, and executives of LG&E or Eon, its parent company.
3. A listing of any and all Kentucky Commerce Cabinet personnel who have been used to assist W. James Host during this time frame, the hours they spent, and how they were compensated.
4. Any contract, agreement, or memorandum of understanding with consultants or other vendors that were entered into by W. James Host on behalf of the Louisville Arena Authority.
5. An itemized accounting of expenditures, including rental of facilities for meetings, by the Arena Authority or W. James Host acting as the Authority's chairman.
6. Any documents or memoranda that explain the relationship between the Louisville Arena Authority, the Kentucky Sports Authority, and the Kentucky Commerce Cabinet.
7. A list of Louisville Arena Authority meetings where a quorum was present but the meetings were not open to the public or the media.
On March 9, 2006, Mr. Sommer e-mailed Mr. Reed asking for his mailing address and on March 13, 2006, Mr. Reed responded by e-mail providing his mailing addresses. On March 20, 2006, Mr. Reed, again by e-mail to Mr. Sommer, stated that he understood that state agencies must respond to open records requests within three business days of receipt; that he had made his request on March 8 and that today's date was March 20. Mr. Reed then asked if he was taking the position the Louisville Arena Authority was not a public agency. In an e-mail response the same day, Mr. Sommer advised:
We are in the process of responding and producing appropriate documents and making applicable determinations. Due to limited resources this request poses certain challenges, as I'm sure you can imagine. My goal is to send out the response on Wednesday with produced documentation.
To that end, while the Attorney General's Office is clear in that Open Records Requests shall not be effective if made via email [see http://ag.ky.gov/civil/dutyunderlaw2005.pdfsee and pages 7-8 therein] presently the Arena Authority intends to respond without the need for you to re-submit your request via U.S. Mail, hand-delivery or via facsimile.
By letter dated March 21, 2006, Mr. Reed initiated the instant appeal to the Attorney General, stating that it was his belief that the Arena Authority was a public agency and that he was appealing the failure of the Arena Authority to respond to his open records request within three business days of its receipt.
After receipt of notification of the appeal and the letter of appeal, Mr. Sommer, provided this office with a response to the issues raised in the appeal. In his response, he argued in relevant part:
To my knowledge, the Louisville Arena Authority, Inc. has not ever been declared a "public agency, " rather, quite the contrary -- reading recent media reports may take notice of the recent efforts to impose such provisions on the Arena Authority throughout the as-yet-still-to-occur budget funding process in Frankfort. Likewise, to the extent footnote 5 [page 3] of Kentucky OAG 06-ORD-042 can be construed to support such a premise, it is hereby disputed.
?
First, although the Offices of the Governor and the Mayor have been granted the privilege of appointing members of the Arena Authority, the Arena Authority's Articles of Incorporation named the initial Board members as required by KRS 273.211(2). Eventually, a majority of the Board will have been directly appointed by the Governor and the Mayor.
As to the Arena Authority "oversee [ing] the expenditure of public funds and the signing of contracts," at some point in the future. If, and when it ever receives "public funds, " if same is greater than 25% of its expenditures in Kentucky then the Arena Authority may become a "public agency" under Open Records and Meetings -- but only at that time. The ability of a corporation to "oversee . . . the signing of contracts" does not make it a public agency, for if it did all corporations (as virtually all have the power to contract under law) would be public agencies under this line of reasoning.
The possibility that the Arena Authority may receive, at some point in the future, more than 25% of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds [KRS 61.870(1)(h)], means at some point in the future it will likely become a "public agency" thereunder. To date, it has not and therefore it does not fall therein; if, and when, this occurs it will likely be brought within the provisions of law herein in question.
By Executive Order 2005-1352, issued on December 12, 2005, Governor Fletcher ordered and directed the establishment of the Louisville Arena Authority, Inc. "to develop and oversee the management of the Louisville Arena." The Executive Order stated that the Arena Authority shall be directed by a board consisting of fifteen (15) members; five (5) persons to be appointed by the Mayor of Louisville; ten (10) to be appointed by the Governor; and appointed W. James Host, as the Chairman of the Board of Directors.
A December 16, 2005 press release issued by the Governor's Office, headlined "Governor Fletcher creates Louisville Arena Authority," announced and listed the ten (10) members of the board appointed by the Governor and the five (5) members of the board recommended for approval by the Mayor of Louisville.
On January 9, 2006, Governor Fletcher issued Executive Order 2006-025, which states in part: WHEREAS, pursuant to Executive Order 2005-1352, the Louisville Arena Corporation was created and established as an agency of state government attached to the Commerce Cabinet, for administrative purposes" and that "WHEREAS a Kentucky non-stock, non-profit corporation known as the Louisville Arena Authority, Inc. now has been formed, on January 9, 2006, under terms of Section 501(c)(3) of the Internal Revenue Code of 1986 and other applicable law." Executive Order 2006-025 further states "the Louisville Arena Authority, Inc. [formed on January 9, 2006] having been established and come into full existence, it therefore has been determined that the provisions of Executive Order 2005-1352 are no longer needed and should be rescinded. Executive Order 2006-025 then ordered and directed that provisions of Executive Order 2005-1352 be rescinded, declared null and void and are no longer in effect." Executive Order 2006-025 was made effective as of December 12, 2005.
The Articles of Incorporation of the non-stock, non-profit corporation Louisville Arena Authority, Inc., formed on January 9, 2006, provide that the Board of Directors shall consist of Fifteen members; the Mayor of Louisville, Jefferson County, Metro Government shall appoint five (5) persons to the board, including the Vice-Chair; and the Governor shall appoint ten (10) persons to the Board, including the Chair. [As a point of fact, the persons appointed by the Mayor and the Governor in the newly formed Louisville Arena Authority, Inc., are the same persons appointed to the Louisville Arena Authority, Inc. created by Executive Order 2005-1352, including W. James Host as Chair.]
The threshold issue in this appeal is whether the Arena Authority is a public agency for purposes of the operation and requirements of the Open Records Act. KRS 61.870(1)(i) provides: "Public agency" means:
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;
The facts in this appeal clearly evidence that the Louisville Arena Authority, Inc., the non-stock, non-profit corporation formed on January 9, 2006, is a "public agency, " under KRS 61.870(1)(i).
Notwithstanding that the Louisville Arena Authority, Inc., formed on January 9, 2006, was created as a non-stock, non-profit corporation, it became a "public agency, " subject to the operation of the Open Records Act, under KRS 61.870(1)(i), when "the majority of its governing body, " [the Board of Directors] was "appointed by a public agency [the Governor and the Mayor]." Both the Governor and the Mayor are defined as a "public agency, " under KRS 61.870(1)(a), as they are state and local government officers, respectively.
In this particular non-stock, non-profit corporation, the Articles of Incorporation directs that the Arena Authority Board of Directors, who conducts the affairs of the Arena Authority, shall be appointed by the Governor and the Mayor of Louisville. Articles 5.2 and 5.4, Articles of Incorporation. It is the appointments by the Governor and the Mayor, and not the form of the corporation, which make the Arena Authority subject to the Open Records law. The corporate form does not determine whether the Arena Authority is a public agency. The agency seems to concede this point when it states, in its supplemental response to the letter of appeal, that it will become a public agency, at some point in the future, when it receives more than 25% of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds, citing KRS 61.870(1)(h). Accordingly, we conclude the Louisville Arena Authority is a "public agency, " as defined by KRS 61.870(1)(i), and is therefore subject to the requirements and operation of the Open Records Act. These facts are conclusive. An interpretation of KRS 61.870(1) which does not include the Arena Authority as a public agency:
is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law. The obvious purpose of the Open Records law is to make available for public inspection all records in the custody of public agencies by whatever label they have at the moment. Statutes are to be interpreted with a view to promote their objects and to carry out the intent of the Legislature. KRS 446.080.
Frankfort Publishing Co., Inc., v. Kentucky State University Foundation, Ky., 834 S.W.2d 681, 682 (1992).
The expansive definition of public agency found at KRS 61.870(1) indicates a legislative intent to facilitate the broadest possible access to public records. This observation is confirmed by the statement of policy found at KRS 61.871, which provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
The Arena Authority is a public agency for purposes of the Open Records Act and the free and open examination of the "creating, financing, developing, and overseeing the construction, management and operation of a multi-purpose arena to be constructed in Louisville, Jefferson County, Kentucky" is in the public interest. Article 3.1, Articles of Incorporation of the Arena Authority. Access to Arena Authority records is therefore governed by the Act. Because this conclusion is dispositive of this issue, we need not address whether it is a "public agency, " under KRS 61.870(h).
Having determined that the Arena Authority is a public agency subject to the Open Records Act, we address the issue of whether the agency violated the provisions of KRS 61.880(1) in responding to Mr. Reed's request. KRS 61.880(1), in part requires that a public agency respond to an open records request within three business days of its receipt advising the requester of its decision in writing as to whether it will comply with the request.
By e-mail dated March 8, 2006, Mr. Reed submitted his request to the Arena Authority. On March 9, 2006, Mr. Sommer e-mailed Mr. Reed asking for his mailing address. On March 13, 2006, Mr. Reed responded by e-mail providing his mailing addresses. On March 20, 2006, Mr. Reed e-mailed Mr. Sommer indicating that he had yet to receive substantive response. On the same day, Mr. Sommer replied by e-mail advising that the agency was "in the process of responding and producing appropriate documents and making applicable determinations," and that his goal was to send out a response by Wednesday. A substantive response would have been due on March 13, 2006. As of the date of his letter of appeal, March 21, 2006, Mr. Reed indicated he had yet to receive a substantive response. Under these facts, we conclude that the Arena Authority's failure to timely respond to Mr. Reed's request in writing within three business days after its receipt was a procedural violation of the Open Records Act. As long recognized by this office, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open record request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
We do note, that the Arena Authority is not obligated to accept an open records request transmitted by email, but may "consent, by a clear course of conduct, to transact [its] open records business by email. " 98-ORD-167, p. 5. Mr. Reed submitted his open records requests by email. The Arena Authority signaled its consent to communicate with him electronically about his requests by subsequent email transmissions.
We also note that Mr. Reed asks for an advisory opinion on the issue of what the status of the Arena Authority is for purposes of the Open Meetings Act. Because this issue is not ripe for review under KRS 61.846, we decline to address an open meetings issue in the context of an open records appeal.
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.