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 Mountain Rural Telephone Cooperative Corporation violated the Open Records Act in the disposition of Randy Skaggs' July 13, 2006, request for various records relating to a billing dispute. As a threshold issue, we must determine if Mountain Telephone is a public agency for open records purposes and therefore subject to the procedural and substantive requirements of the Act. For the reasons that follow, we find that because Mountain Telephone does not fall within the definitional parameters of a public agency, codified at KRS 61.870(1), it cannot be said to have violated the Act in the disposition of Mr. Skaggs' request.
In his July 13 written application, Mr. Skaggs requested access to records relating to repair and service call charges, as well as "hidden charges," that appeared on his telephone bill following DSL installation. Having received no response to his request, Mr. Skaggs initiated this appeal on July 22, 2006. Shortly thereafter, General Manager W. A. Gillum notified this office that Mountain Telephone "is a private, not for profit member owned Cooperative that receives essentially no funds from any state or local government entities. " Having reviewed the definitional section of the Act, and in particular, the definition of the term "public agency, " he concluded that "Mountain Telephone is not a 'public agency' as it pertains to the Kentucky Open Records Law." Nevertheless, Mr. Gillum agreed to "initiate a new and full review of ALL 'MISCELLANEOUS and/or SERVICE CHARGES' billed to Mr. Skaggs since January 1, 2006, on [all telephone numbers included in his member account]" by August 10, 2006. In light of Mr. Gillum's statement that Mountain Telephone is a private, not for profit member owned Cooperative receiving little or no state or local authority funds, we find no violation of the Open Records Act in its failure to respond to Mr. Skaggs' request.
The term "public agency" is expansively defined at KRS 61.870(1) 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), (i), or (j) of this subsection;
(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 (j) 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.
This provision operates in para materia with KRS 61.870(2), and the two statutes must be construed together. KRS 61.870(2) thus provides:
"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. 1
(Emphasis added.) Despite the expansive language of these provisions, and the clearly expressed legislative intent that the Open Records Act must be strictly construed so as to insure the broadest possible access to public records, 2 the Attorney General has recognized, on a number of occasions, that a private not for profit corporation is not a public agency for open records purposes unless 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) as construed in OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 94-ORD-98; 96-ORD-99; 97-ORD-65; 99-ORD-65.
Based on Mr. Gillum's assertion that Mountain Telephone receives little or no state or local authority funds, we conclude that the proportion of its public funding does not meet the 25% threshold established in KRS 61.870(1)(h). In the absence of clear and convincing evidence to the contrary, we assume the truthfulness of this statement. We therefore conclude that Mountain Telephone is not a "public agency" within the meaning of KRS 61.870(1), and is not subject to the Open Records Act. We are nevertheless hopeful that Mr. Skaggs' grievances can be resolved through the review of all miscellaneous and service charges which Mountain Telephone agreed to undertake on his behalf.
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.
Footnotes
Footnotes
1 Underlying the highlighted language appearing in KRS 61.870(2), when read in conjunction with KRS 61.870(1)(h), is the recognition that "[a]s far as open records are concerned, it is apparently the policy of the legislature that wherever public funds go, public interest follows," OAG 80-633, p. 2, citing OAG 76-648, and that the "use of [public] funds is a matter of public stewardship . . . and we can see no justification for keeping such records secret from the public." OAG 80-633, p. 2.
2 KRS 61.871.