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 South Eastern Water Association, Inc., a private nonprofit corporation that derives less than twenty-five percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority, is not a public agency within the meaning of KRS 61.870(1)(a) through (k), and its records are not subject to inspection under the Open Records Act. It cannot, therefore, be said to have violated the Act in the disposition of David B. Jorjani's November 5, 2010, request for records relating to waterline installation at a specified address. Because South Eastern Water Association is not a public agency as defined in KRS 61.870(1)(a) , (b), (c), (d), (e), (f), (g), (i), (j), or (k), 1 resolution of this question hinges on the application of KRS 61.870(1)(h), as recently reinterpreted in 09-ORD-033, to the Association.
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. 2
In correspondence directed to this office following commencement of Mr. Jorjani's appeal, D. Bruce Orwin, an attorney representing the Association, advised us that his client received less than ten percent of its revenues from state or local authority in 2009 and just over fifteen percent of its revenues from state or local authority in 2010. The bulk of these state or local funds were expended on local projects using local contractors. Virtually all of the remaining funds it expended in 2009 and 2010, representing more than the revenues generated, were expended in the Commonwealth, the lion's share for the purchase of water for resale from a neighboring locality. Because South Eastern Water Association, Inc., does not meet the twenty-five percent threshold established in KRS 61.870(1)(h), as recently interpreted, 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. Jorjani's request. Accord, 09-ORD-192; 10-ORD-148; compare 10-ORD-062.
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.
David B. JorjaniD. Bruce Orwin
Footnotes
Footnotes
1 Pursuant to KRS 61.880(2)(c), this office requested additional information from the Association to confirm that it is not an inter-agency body of two or more public agencies, within the meaning of KRS 61.870(1)(k), or an entity whose governing body is appointed by a public agency, a member or employee of a public agency, or any combination thereof, within the meaning of KRS 61.870(1)(i). The Association promptly provided the requested information. With the exception of KRS 61.870(1)(h), none of the other definitional sections even arguably apply to the Association.
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2 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.
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