Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Monticello Banking Company violated Kentucky's Open Records Act in the disposition of Michael Dean's January 24, 2009, request for "all records pertaining to Glenna Dean's last loan, including any and all insurance and loan payoff receipts with the loan from Monticello Banking Company." In his request, Mr. Dean explained that Glenna Dean was his mother. Because Monticello Banking Company is not a public agency for open records purposes, and its records are not subject to statutory regulation under the Act, we find no violation of the Act in the disposition of Mr. Dean's request.
In a response dated March 5, 2009, attorney Van F. Phillips advised Mr. Dean that the Open Records Act "deal[s] mainly with government entities and agencies and not private corporations." Nevertheless, he indicated that the bank "ha[d] no objection to attempting to help [Mr. Dean] in this matter," suggesting that if his mother's estate was being probated, he could "obtain a subpoena through the probate action . . . requesting the Monticello Banking Company . . . produce the records specifically sought . . . ." On appeal, Mr. Dean explained that his mother's estate is not being probated and questioned the pay off on insurance she has secured on a ten thousand dollar loan.
In supplemental correspondence directed to this office following commencement of Mr. Dean's appeal, Mr. Phillips amplified on his client's position. Responding to this office's KRS 61.880(2)(c) 1 inquiry, Mr. Phillips attached the affidavit of Kevin Mullins, Chief Financial Officer of Monticello Banking Company, in which Mr. Mullins stated that the bank "derives zero percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds," and that this "includes the current fiscal year."
It is the decision of this office that the overwhelming weight of legal authority supports the bank's position that its records are not governed by the Open Records Act. In an early open records opinion, this office emphatically declared that "[a] national bank is not a public agency within the meaning of the Kentucky Open Records Law, nor is a state bank. " OAG 79-325, p. 1. Elaborating on that view, in 92-ORD-1388, we observed:
A bank's records are not public records, and are therefore not subject to the Open Records Act. OAG 80-454. This is consistent with the principle announced in OAG 79-325. In that opinion, we held that a national or state bank is not a public agency within the meaning of the Act. Although the definition of a public agency underwent substantial revision in the 1992 General Assembly, those changes do not alter the conclusions reached in these early opinions. Clearly, [a] bank does not fall within the parameters of KRS 61.870(1), and the records it maintains are not public records.
92-ORD-1388, p. 2; see also, 01-ORD-80 (holding that PNC Bank was not a public agency for open records purposes); compare, OAG 89-35 (checks drawn upon a public agency account, and indicating disbursements of amount of money therefrom, are public records within the meaning of KRS 61.870(2) and OAG 79-575.
Consistent with this line of authority, we find that Monticello Banking Company is not a public agency pursuant to KRS 61.870(1)(a) through (k). In particular, the bank does not derive at least twenty-five percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds, and therefore does not fall within the definitional parameters of KRS 61.870(1)(h). Simply stated, there is no statutorily based authority upon which to confer public agency status to Monticello Banking Company. Accordingly, the bank is not obligated under the Open Records Act to provide the requested records to Mr. Dean, and cannot be said to have violated the Act in refusing to do so.
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.
Michael DeanVan F. Phillips
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed. (Emphasis added.)
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