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 Masonville Fire Department violated the Kentucky Open Records Act in failing to respond upon receipt of Mike Nance's request for "all records" concerning an automobile accident that occurred on May 30, 2001, or May 31, 2001, between "22:30 hours (10:30 PM) and 22:45 hours (10:45 PM)" approximately "1/2 mile north of the Pleasant Ridge Station on US Hwy 231[,]" and "all records of operation budget for the Masonville-Pleasant Ridge Fire Departments for the fiscal year 2006/2007." By letter dated September 23, 2006, Mr. Nance initiated this appeal challenging the inaction of the MFD relative to his request. In our view, 06-ORD-085, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented; the record is devoid of evidence to support a different conclusion.
According to Mr. Nance, the MFD "will insist" it is a private agency in accordance with 06-ORD-085; however, the Daviess County Fiscal Court has provided him with records "that clearly show" the MFD is a public agency since that decision was issued (April 18, 2006). Attached to Mr. Nance's letter of appeal is a copy of the final response provided by Anthony D. Sook, CPA, on behalf of the Fiscal Court, in satisfaction of his request dated August 20, 2006, for various financial records. 1 In relevant part, the information provided by the Fiscal Court establishes that none of the "Payments to MFD" (training costs and fuel) or the "Financial Aid" (payments to utility companies on behalf of MFD) supplied during the fiscal years of 2002-2003 and 2003-2004, were expended by the MFD in the Commonwealth of Kentucky; nor do the "Capital Improvement" (Bay addition-Pleasant Ridge Station) , and "Capital Purchase Granted to MFD for Use (1994 Ford F-550), both of which also occurred in the fiscal year of 2003-2004, constitute "funds" even if the funds had been "expended" by the MFD. In the fiscal year of 2004-2005, the Fiscal Court made no "Payments to MFD," but did make a "Capital Improvement to Equipment Owned by DCFC" (truck bed); again, none of the funds expended by the MFD in the Commonwealth, let alone the requisite twenty-five (25%) percent, were derived from state or local authority funds, even if capital improvements could properly be characterized as funds. Most importantly, the itemized statement provided by Mr. Sook confirms that no "monies or financial aid" were supplied to the MFD during the fiscal years of 2005-2006 or 2006-2007. In conclusion, Mr. Sook confirmed that Daviess County has not received, or applied for, any grants on behalf of the MFD, but does have a "blanket insurance policy through KACo providing property and liability for all volunteer fire departments' stations and equipment."
Upon receiving notification of Mr. Nance's appeal from this office, Robert M. Kirtley, Daviess County Attorney, responded on behalf of the MFD. As correctly observed by Mr. Kirtley, the request in question (dated September 2, 2006) mirrors the request (dated December 20, 2005-resubmitted on January 7, 2006) which culminated in 06-ORD-085 (holding that because the membership charges or subscriber fees received by the MFD are not properly characterized as local authority funds, nor does the MFD otherwise derive at least 25% of the funds expended by it in the Commonwealth from state or local authority funds, the MFD is not a public agency) . Enclosed with Mr. Kirtley's response is a copy of the related but separate request for seven categories of financial records "between the County of Daviess/Daviess Fiscal Court and the [MFD]" that Mr. Nance directed to Daviess County Judge Executive Reid Haire on August 20, 2006, a copy of the initial response from Judge Haire advising Mr. Nance that "due to the volume and years involved . . . and pursuant to KRS 61.872(5)," his staff required "an additional ten (10) days to retrieve this information[,]" and a copy of the final response provided by Mr. Sook on behalf of the Fiscal Court summarized above.
In Mr. Kirtley's view, "the information furnished in this response does not provide that the Masonville-Pleasant Ridge Fire Departments are public agencies as they did not receive 25% of their funds from state or local authority funds in 2001 nor do they today." 2 Furthermore, the Masonville-Pleasant Ridge Fire Departments "do not have a written operation budget for 2006/2007, and Daviess County Fiscal Court has not provided any monies to the departments in 06/07." 3 In other words, the MFD did not derive at least 25% of the funds expended by it in the Commonwealth from state or local authority funds during the relevant period as evidenced by the record on appeal in 06-ORD-085 and the record in this appeal. That being the case, the MFD does not fall within the definition of "public agency" codified at KRS 61.870(1)(h). Because the MFD is not a public agency for purposes of the Open Records Act, the MFD cannot be said to have violated the Act in declining to honor Mr. Nance's request; the instant appeal presents no reason to depart from governing precedent.
In accordance with KRS 61.880(5) and KRS 61.882, Mr. Nance may appeal this decision to the appropriate circuit court; the Attorney General is precluded from reconsidering the issue presented. If Mr. Nance decides to pursue his remedies in circuit court, the Attorney General should be notified, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 As explained by Mr. Sook, "the Masonville Fire Station located on Hwy 231 was purchased in 1974 by Masonville Fire Department Inc.; however, in 1993 Masonville Fire Dept. deeded same to the Daviess County Public Improvement Corp. so that a bond could be issued to purchase fire equipment and renovate fire stations. " However, the bond "has been paid in full, and as soon as Masonville Fire Dept. renews its corporation papers, same will be deeded back to Masonville Fire Dept., Inc." To clarify, Masonville Fire Department (named party in this appeal) and Masonville Fire Department, Inc. (named party in previous appeal) , have been used interchangeably throughout these proceedings by the parties to refer to the same entity.
2 In responding to Mr. Nance's previous appeal, Mr. Kirtley clarified that the MFD "operates on a calendar year basis." Because this office conclusively resolved the issue presented in favor of the MFD earlier this calendar year, the same result necessarily follows here. See 40 KAR 1:030, Section 4.
3 By letter dated October 13, 2006, Mr. Nance reiterated his previous arguments, beginning with his assertion that evidence has been discovered "that clearly identifies" the MFD as a public agency since his initial request of December 20, 2005. Although Mr. Nance asserts that his current request is dated August 29, 2006, the evidence of record establishes that his request is dated September 2, 2006, with his prior request to Judge Haire being dated August 20, 2006, the response to which is dated August 29, 2006. As previously noted, the request which is the subject of 06-ORD-085 was resubmitted on January 7, 2006, or within the same calendar year as the request which is the subject of this appeal.