Skip to main content

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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

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.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Disclaimer:
The Sunshine Law Library is not exhaustive and may contain errors from source documents or the import process. Nothing on this website should be taken as legal advice. It is always best to consult with primary sources and appropriate counsel before taking any action.
Requested By:
David B. Jorjani
Agency:
South Eastern Water Association, Inc.
Type:
Open Records Decision
Lexis Citation:
2011 Ky. AG LEXIS 22
Forward Citations:
Neighbors

Support Our Work

The Coalition needs your help in safeguarding Kentuckian's right to know about their government.