Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Penn Virginia Oil & Gas Corporation violated the Kentucky Open Records Act in failing to respond upon receipt of Danny Goff's written request for a copy of "any & all records regarding Columbia Gas (lease agreement-contract) with heirs of Hubert Goff [sic] entered into in July 1989 with C.D. & G Development Co." As a threshold issue, 1 this office must determine whether PVOG is a "public agency" for purposes of the Open Records Act. Based upon the following, this office finds that PVOG is not a public agency within the meaning of KRS 61.870(1) nor can the records in question be properly characterized as "public records" under KRS 61.870(2); accordingly, PVOG, a private corporation, is not statutorily required to comply with provisions of the Open Records Act.
In a letter dated February 20, 2008, Mr. Goff initiated this appeal challenging the failure of PVOG to respond. Upon receiving notification of Mr. Goff's appeal from this office, Sarah Mehra, Associate General Counsel, responded on behalf of PVOG, confirming that PVOG "is not a 'public agency' as defined in KRS 61.870(1)." Inasmuch as PVOG is not required to comply with requests filed under KRS Chapter 61 unless it can be so characterized, PVOG "will not provide documentation pursuant to the Open Records Appeal filed by Danny Goff #125941." Because the record on appeal is devoid of evidence to refute Ms. Mehra's assertion regarding the status of PVOG, this office finds that PVOG is not governed by, and therefore did not violate any provisions of the Act.
For purposes of the Open Records Act, a "public agency" is defined as:
(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),(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[.]
KRS 61.870(1)(Emphasis added.) 2
As evidenced by the italicized language, the Kentucky Open Records Act only applies to "public agencies" located within the "state" of Kentucky and it "presumes jurisdiction over the public agency involved." 03-ORD-251, p. 3. Headquarters for PVOG are located in Radnor, Pennsylvania. 3 Because this prerequisite is lacking here, the Attorney General is without authority to find that PVOG committed a violation under the Open Records Act. Moreover, a private entity located within Kentucky does not come within the purview of the Open Records Act 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)(h); 02-ORD-41, p. 1; 06-ORD-007; 03-ORD-236; 97-ORD-114; 96-ORD-197; 96-ORD-15. In sum, PVOG, a private corporation with headquarters located in Pennsylvania, is "not obligated to comply with the provisions of the Open Records Act, " which necessarily means that PVOG did not violate the Act in failing to respond upon receipt of Mr. Goff's request. 96-ORD-197, p. 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.
Footnotes
Footnotes
1 Jurisdiction is a "threshold requirement" for application of the Act. See Artrip v. Samons Construction, Inc., Ky. App., 54 S.W.3d 169, 173 (2001).
2 KRS 61.870(1) operates in tandem with KRS 61.870(2), pursuant to which:
"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.
3 According to its website, the address for which is www.pennvirginia.com, PVOG is "a member of the S & P SmallCap 600 Index" and is "an independent natural gas and oil company focused on the exploration, acquisition, development and production of reserves in five onshore regions of the U.S." In other words, information available on thewebsite confirms that PVOG is both located outside of the Commonwealth of Kentucky and has all of the indicia of a private corporation being operated for profit.