Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether AT&T Mobility Corporation (AT&T) violated the Open Records Act in the disposition of James David Adkins' request for "copies of my phone records, showing all incoming and outgoing calls made for mobile number (270) 256-4646 for the time period of 1/01/06 to 1/30/06." For the reasons that follow, and based upon evidence presented that it does not derive at least twenty-five percent (25%) of its funds expended in the Commonwealth from state or local authority funds, we find that AT&T is not a public agency for open records purposes and that it therefore did not violate the Act in the disposition of Mr. Adkins' request.
AT&T apparently responded to Mr. Adkins' undated request on December 12, 2008, but sent its letter to the wrong address. Having received no response to his request, Mr. Adkins initiated the instant appeal.
This office has opined that a private corporation comes within the purview of the Open Records Act only if it derives at least 25% of its funds expended in the Commonwealth from state or local authority funds. 09-ORD-033. That decision was based on the following definition of "public agency" set out in KRS 61.870(1)(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.
Pursuant to KRS 61.880(2)(c), and to facilitate our review of the issues on appeal, we requested that AT&T provide this office with additional information to substantiate that it is not a "public agency, " as defined by KRS 61.870(1), and thus not subject to the Open Records Act.
In response to our inquiries, Mary Keyer, General Counsel for AT&T Kentucky, provided an affidavit from Teresa G. Blizzard, Assistant Secretary of AT&T Mobility Corporation, swearing that "AT&T Mobility derived 0% of the funds it expended in the Commonwealth of Kentucky in the last fiscal year from state or local authority funds." Thus, under the facts and circumstances presented in this appeal, we find that AT&T Mobility Corporation does not receive twenty-five percent or more of its funds expended in the Commonwealth from any state or local authority. We therefore conclude that AT&T Mobility Corporation is not a "public agency" within the meaning of KRS 61.870(1)(h), or any other provision of KRS 61.870(1)(a) through (k), and is not subject to the Open Records Act. Accordingly, it is not required either to release its records or to adhere to procedural requirements in response to a request for its records under the Open Records Act. 00-ORD-91; 93-ORD-127.
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.
James David Adkins # 217329Mary K. Keyer, Esq.