Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Dismas Charities, Inc., is not a public agency for open records purposes and therefore cannot be said to have violated the Open Records Act in the disposition of Howard Cobb's March 27, 2009, request for a copy of property inventories that were generated at the time of his arrival and forwarded when he was transferred. Resolution of this issue turns on the application of KRS 61.870)(1)(h), as recently reinterpreted in 09-ORD-033, to Dismas Charities, Inc.
KRS 61.870(1)(h) defines the term "public agency" as "[a]ny body that derives at least twenty-five percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." In 09-ORD-033, this office modified the position it had previously taken relative to this provision in an attempt to give full legal import to its express language. For the first time, we focused on what percentage of money an entity expended in the Commonwealth comes from state or local authority funds rather than what percentage of its total revenue is derived from state or local authority funds. 1
In correspondence directed to this office following commencement of Mr. Cobb's appeal, Steve Clark, Chief Financial Officer of Dismas Charities, Inc., advised us that for the most recent year in which the percentage of state or local authority funds expended in the Commonwealth could be calculated, to wit, the year ending December 31, 2008, 2 only 21.8% of the funds Dismas expended in the Commonwealth were derived from state or local authorities. Because Dismas Charities, Inc., does not meet the twenty-five percent threshold established in KRS 61.870(1)(h), as recently reinterpreted, we find that it is not a public agency for open records purposes, and therefore cannot be said to have violated the Open Records Act in the disposition of Mr. Cobbs' request.
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.
Distributed to:
Howard Cobb, #145682 D-6Jan KempfSteve ClarkIan Ramsey
Footnotes
Footnotes
1 The Kentucky Supreme Court recognized the Attorney General's authority to modify an existing interpretation of the law in Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008), declaring that the office "was permitted to re-examine -- and even reject -- its former interpretation of the law" where circumstances warranted a re-examination.
2 At page 8 of 09-ORD-033, this office acknowledged that "[t]he absence of specific parameters within KRS 61.870(1)(h) has impeded our ability to effectively implement the apparent legislative intent." This includes the failure to "fix the period within which this determination [is] to be made (calendar year, fiscal year, calendar or fiscal year to date of request)." Because Dismas Charities, Inc., can only furnish this office with the most recent year in which the percentage of state or local authority funds expended in the Commonwealth can be calculated, to wit, 2008, we must accept these figures for purposes of determining its status as a public agency.