Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Dismas Charities, Inc. violated the Kentucky Open Records Act in failing to issue a written response upon receipt of Arnold Alexander's April 21, 2010, request for "a complete copy of the video tape of the time, area and testing specified in the disciplinary report" concerning the Breathalyzer test performed on March 17, 2010, and a copy of the "license or other authoritative certificates" for each staff member documenting their qualifications to use a Breathalyzer. Specifically, the question presented is whether Dismas Charities, Inc., a "private, non-stock, not-for-profit national provider of community corrections and social services," 1 is a "public agency" for purposes of the Open Records Act. Resolution of this issue, as in 09-ORD-085 (Howard Cobb/Dismas Charities, Inc.), turns on the application of KRS 61.870(1)(h), as reinterpreted in 09-ORD-033, to Dismas. Because the evidence presented again establishes that Dismas does not derive at least twenty-five percent (25%) of the funds it expends in the Commonwealth of Kentucky from state or local authority funds, and it therefore does not fall within the parameters of KRS 61.870(1)(h), nor does it otherwise qualify as a "public agency" within the meaning of KRS 61.870(1), this office finds that Dismas is not subject to, and therefore cannot be said to have violated the provisions of the Act.
Upon receiving notification of Mr. Alexander's appeal from this office, Ian T. Ramsey, Stites & Harbison PLLC, responded on behalf of Dismas, initially noting that the Office of the Attorney General previously found that Dismas was not a public agency under KRS 61.870(1)(h). As Mr. Ramsey correctly observed, in 02-ORD-119, this office "found that Dismas 'is not a public agency within the meaning of KRS 61.870(1) and therefore has no obligations under the Act.' On April 12, 2006, 06-ORD-077 was issued arriving at the same conclusion." More recently, he continued, this office reevaluated its previous interpretation of KRS 61.870(1)(h), 2 holding that a proper interpretation of KRS 61.870(1)(h) requires consideration of "'the amount of state or local authority funds expended by the 'body' in the Commonwealth of Kentucky." 09-ORD-033, p. 9. Applying this revised standard to Dismas, 3 Mr. Ramsey explained, in 09-ORD-085 this office again determined that Dismas was not a public agency within the meaning of KRS 61.870(1)(h).
Pursuant to KRS 61.870(1)(h), "public agency" means "[a]ny 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." In 09-ORD-033, as previously indicated, this office reevaluated its position regarding application of KRS 61.870(1)(h) and modified it as needed in order to fully effectuate the legislative intent. 4 Having done so, this office now "looks to the amount of state or local authority funds expended by the 'body' in the Commonwealth as well as the amount of funds derived from state or local authorities. " Id., p. 9 (original emphasis). 5
Attached to Mr. Ramsey's response is the Affidavit of Steve Clark, Chief Financial Officer for Dismas, which confirms that in this capacity he "reviewed the financial records of Dismas for the year ending December 31, 2009, that can be utilized to calculate the amount of state or local authority funds expended by Dismas in the Commonwealth of Kentucky." Based on his review of those records, Mr. Clark determined that "20.9% are derived from Kentucky state or local authorities. " Similarly, in 09-ORD-085, Mr. Clark advised this office that for the year ending December 31, 2008, Dismas only derived 21.8% of the funds it expended in the Commonwealth from state or local authority funds; accordingly, this office found, as previously noted, that Dismas did not satisfy the statutory threshold of twenty-five percent (25%) codified at KRS 61.870(1)(h) and thus could not be said to have violated the Act. Inasmuch as Dismas has established that only 20.9% of the funds it expended in the Commonwealth were derived from state or local authority funds in 2009, this office must reach the same conclusion here. Because Dismas Charities, Inc. is not a "public agency" within the meaning of KRS 61.870(1)(h), it cannot be said to have violated the Open Records Act relative to Mr. Alexander's 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.
Arnold Alexander, # 099650Karen RuffJoseph TheriotIan Ramsey
Footnotes
Footnotes
1 02-ORD-119, p. 1.
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2 In so doing, this office noted that in Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008), the Kentucky Supreme Court expressly recognized the prerogative of the Attorney General to depart from precedent when the circumstances warrant doing so, declaring that the "Attorney General was permitted to reexamine - and even reject - its former interpretation of the law."
3 09-ORD-033 was appealed to the Jefferson Circuit Court. In William W. Chilton, III v. M.A. Mortenson Company, No. 09-CI-02749 (Jefferson Circuit Court - Division 13, November 24, 2009), the Court granted M.A. Mortenson's motion to dismiss, agreeing "that the lack of any time period within which the expenditure-to-public fund percentage is to be measured renders KRS 61.870(1)(h)" unconstitutional. In the absence of a published opinion by the Kentucky Supreme Court or the Kentucky Court of Appeals finding KRS 61.878(1)(h) unconstitutional, this office is compelled to continue applying that provision as written.
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4 09-ORD-033 admittedly represented a "significant departure from prior decisions in which the 'expended by it in the Commonwealth' language" found in KRS 61.870(1)(h) "was not meaningfully applied." Id., p. 6. The Attorney General reversed that line of decisions, finding that KRS 61.870(1)(h) "must be construed in a manner that gives full legal effect" to the apparent legislative intent. Id., p. 9.
5 In 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 can only furnish this office with a percentage from the most recent year in which the amount of state or local authority funds expended in the Commonwealth can be calculated, to wit, 2009, this office must accept the figures provided in determining its status.
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