Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether South Central Rural Telephone Cooperative Corporation, Inc. violated the Kentucky Open Records Act in denying Jeffrey S. Jobe's July 9, 2011, request "for numbers reported on 1099's [sic] for the board of trustees and board affiliates [i.e.,] the General Counsel." More precisely, the question presented is whether SCRTC, "a non-profit rural telephone cooperative created under the provisions of KRS 279.310 et seq. " is a "public agency" within the meaning of KRS 61.870(1). Resolution of this determinative question turns on the application of KRS 61.870(1)(h), as reinterpreted in 09-ORD-033, to SCRTC. 1 Because no evidence has been presented to refute its assertion that none of the funds expended by SCRTC in the Commonwealth of Kentucky are derived from state or local authorities, nor has our independent research located any, this office must conclude that SCRTC does not satisfy the twenty-five percent (25%) threshold of KRS 61.870(1)(h) and thus cannot be said to have violated the Open Records Act in the disposition of Mr. Jobe's request. See 06-ORD-162.
By letter dated August 4, 2011, SCRTC General Counsel Bobby H. Richardson responded on its behalf, advising Mr. Jobe without explanation that he was "not authorized by the Board of Trustees to disclose any information to you." Mr. Jobe initiated this appeal shortly thereafter, noting that SCRTC "took 3 weeks to respond" and then provided "no explanation at all." He asserted that SCRTC is a "public entity" because they have accepted "public funds to establish, and continue to use public funds. Plus, they were created under [the Kentucky Revised Statutes] and this alone," 2 he argued, is indicative of "such a classification." 3 Upon receiving notification of Mr. Jobe's appeal, Mr. Richardson briefly supplemented his response on behalf of SCRTC, advising that "SCRTC is not a public agency as defined in KRS 61.870(1)." Mr. Richardson further indicated that "SCRTC is a non-profit rural telephone cooperative created under the provisions of KRS 279.310 et seq." and is "not subject to the open meetings or open records provisions of KRS [Chapter] 61 and Mr. Jobe is not entitled to the information he requested."
Unable to conclusively resolve the question of whether SCRTC is a "public agency" for purposes of the Open Records Act given the limited evidence presented, this office asked SCRTC to provide us with additional information per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. Specifically, this office requested that Mr. Richardson "advise what percentage of the funds expended by SCRTC in the Commonwealth during the most recent fiscal year was derived from state or local authority funds. Also, please include any documentation that supports your client's position." In a timely written response, Mr. Richardson quoted the language of KRS 61.870(1)(h), and clarified that when he replied that SCRTC "was not a public agency as defined in KRS 61.870, it included the representation that it did not meet those requirements." "To be explicit," he continued, "none of its funds come from state or local authority funds." In support of this position, SCRTC attached a statement from Chris Lawrence, Interim General Manager/Business Director, confirming that "[n]one of the funds received by [SCRTC] are derived from local or state authority funding. " SCRTC did not provide any financial documentation to substantiate this assertion. In the absence of any objective proof to refute its position, however, this office must conclude that SCRTC does satisfy the 25% threshold of KRS 61.870(1)(h), and thus cannot be said to have violated the Open Records Act in denying Mr. Jobe's request for otherwise non-exempt information.
In relevant part, KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person . . . and suitable facilities shall be made available by each public agency for the exercise of this right." Pursuant to KRS 61.870(2), "public record" means:
all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
Resolution of the question presented, as indicated, turns on whether SCRTC is a "public agency" within the meaning of KRS 61.870(1), which broadly defines public agency to include:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any 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;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies here each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]
Despite the expansive language of these provisions, which operate in tandem, and the clearly expressed legislative intent that the Open Records Act must be strictly construed so as to ensure the broadest possible access to public records, 4 the Attorney General has recognized, on a number of occasions, that a private, non-profit corporation is not a public agency for purposes of the Open Records Act unless it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." KRS 61.870(1) as construed in OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 94-ORD-98; 96-ORD-99; 99-ORD-65; 06-ORD-162; 09-ORD-042; 09-ORD-083; 11-ORD-021; 11-ORD-040.
It is readily apparent that SCRTC does not qualify as a public agency under KRS 61.870(1)(a), (b), (c), (d), (e), (f), (g), (j), or (k). Likewise, 61.870(1)(i) is facially inapplicable given that its governing body, the Board of Directors (consisting of seven members elected by the members in their district), is not appointed by a public agency. Though not dispositive standing alone, information publicly available on the website of the Kentucky Secretary of State (http://www.sos.ky.gov)) reveals that SCRTC is a "Non-profit, " "Kentucky Corporation," with "Active" status, which is currently in "Good" standing. Its principal office is located in Glasgow, Kentucky. In addition to having a board of directors, SCRTC also files annual reports and has a registered agent (Mr. Richardson). By all conventional indications, in other words, SCRTC is a private corporation that is not subject to the Open Records Act. 5 In sum, KRS 61.870(1)(h) 6 is the only definitional provision which is potentially applicable on the facts presented. See 11-ORD-040.
When, as here, evidence is introduced that an otherwise private corporation receives less than 25% of its funds from state or local authorities, the Attorney General has consistently held that it cannot be properly characterized as a public agency. 93-ORD-90; 96-ORD-127; 06-ORD-162; 09-ORD-083; 11-ORD-040. In this case, legal counsel for SCRTC ultimately advised that none of his client's funding is derived from state or local authorities. The General Manager/Business Director of SCRTC confirmed this assertion but SCRTC declined to elaborate or provide any supporting documentation. In 09-ORD-033, the Attorney General recognized that his "authority under KRS 61.880(2) 'to request additional documentation' extends to agencies, not to bodies that dispute their status as such," and that said limitation "puts the Attorney General in an untenable position relative to compulsory disclosure of supporting documentation. " This office expressed concern that "[a]lthough KRS 61.880(2)(c) assigns the burden of proof to public agencies resisting disclosure of records, where, as here, the 'body' disputes its status as a 'public agency, ' that body cannot properly be assigned the statutory burden of proof. " Id. at 10. Ultimately, this office acknowledged that "the Attorney General is not empowered to require an [ostensibly non-public agency] to comply with our KRS 61.880(2)(c) request." Id. This office finds itself confronted with the same dilemma in the instant appeal.
Our independent research did not reveal any evidence to refute the assertion by SCRTC that it derives none of its funding from state or local authorities. 7 In the absence of any evidence to the contrary, this office must "assume the truthfulness of this statement." 06-ORD-162, p. 4 (holding that Mountain Rural Telephone Cooperative Corporation is not a "public agency" within the meaning of KRS 61.870(1)(h) based on the unrefuted statement that it "receives essentially no funds from any state or local government entities"). Because SCRTC apparently does not derive any of its funding from state or local authorities, the remainder of the KRS 61.870(1)(h) inquiry, relating to how much it expends in the Commonwealth of Kentucky, is rendered moot. See 11-ORD-040. Acknowledging once again that "KRS 61.870(1)(h) lacks specific parameters for analysis, and that this office lacks authority to compel disclosure of documents from 'bodies' disputing their status as public agencies, the Attorney General finds that [SCRTC] is not a 'public agency' within the meaning of KRS 61.870(1)(h), and its records are not accessible under the Open Records Act, inasmuch as [it] apparently does not derive at least '25% of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds.'" 09-ORD-033, p. 10.
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:
Jeffrey S. JobeBobby H. Richardson
Footnotes
Footnotes
1 In 09-ORD-033 (Deborah H. Patterson/M.A. Mortenson Company, issued February 19, 2009), this office was asked to determine whether Mortenson, the "Construction Manager-at-Risk" for the Louisville Arena Authority, was a " public agency" within the meaning of KRS 61.870(1)(h). That Open Records Decision culminated in William H. Chilton, III v. M.A. Mortenson Company , 09-CI-02749 (Jefferson Circuit Court-Division Thirteen, November 24, 2009)(holding that KRS 61.870(1)(h) is unconstitutional); however, in University Health Care, Inc. v. The Courier-Journal , No. 10-CI-04753 (Jefferson Circuit Court-Division Twelve, March 11, 2011), another Division of Jefferson Circuit Court acknowledged the holding of William W. Chilton v. M.A. Mortenson Company , above, but went on to find "that, while deference is, of course, given to the decisions of its brothers and sisters on the Bench, those determinations in no way affect the conclusions of this Court" and ultimately held that KRS 61.870(1)(h) "is not unconstitutionally vague, ambiguous or unintelligible").
These conflicting opinions from different divisions of the same circuit amply illustrate why this office has taken the approach of continuing to follow existing precedent, both in general, and specifically in relation to KRS 61.870(1)(h), until a published opinion by either the Supreme Court or the Court of Appeals to the contrary is rendered and, relative to KRS 61.870(1)(h) in particular, why this office is compelled to apply it as written until such time as the General Assembly amends it or one of those Courts expressly finds it unconstitutional in a published opinion.
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2 In arguing the latter point, Mr. Jobe is presumably relying upon KRS 61.805(2)(e), pursuant to which "[a]ny body created by or pursuant to state or local statute" is a "public agency" for purposes of the Open Meetings Act. However, KRS 61.870(1) does not contain such a provision.
3 The record on appeal contains no evidence by which to determine what exactly he is characterizing as "public funds" or, even assuming that his assertion is correct, any evidence that would enable us to determine whether SCRTC satisfies the 25% threshold of KRS 61.870(1)(h).
4 KRS 61.871.
5 According to information found on http://www.greencounty.ky.gov/departments/scrtc.htm, SCRTC "is a full service telecommunications company offering traditionaltelephone, digital television, DSL Internet, and dial-up Internet service across nine counties (Barren, Metcalfe, Hart, Greene, Larue, Allen, Monroe, Adair, and Nelson)."
6 In 09-ORD-033, this office adopted the interpretation ofKRS 61.878(1)(h) set forth by the appellant, which admittedly represented "a significant departure from prior decisions in which the 'expended by it in the Commonwealth' language was not meaningfully applied." 09-ORD-033, p. 6. Reversing "that line of decisions in which this office did not effectively analyze what percentage of state or local authority funds the 'body' expended in the Commonwealth," the Attorney General reasoned, in relevant part, as follows:
Since July 15, 1994, KRS 61.870(1)(h) has defined "public agency" as "[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." (Emphasis added.) The General Assembly altered the language of KRS 61.870(1)(h) by expanding its language to encompass any "body" receiving any state or local funding so long as that funding represents at least twenty-five percent of the total funds it expends in the Commonwealth.
09-ORD-033, p. 7 (emphasis in original).
7 In 09-ORD-033, the Attorney General acknowledged that KRS 61.870(1)(h) "lacks specific parameters for analysis, and that this office lacks authority to compel disclosure of documents from 'bodies' disputing their status as public agencies, " ultimately concluding, based on the affidavit of Mortenson's Chief Financial Officer, which the appellant presented "insufficient probative evidence to refute, " that Mortenson was not a "public agency" within the meaning of KRS 61.870(1)(h). Although the record on appeal here does not contain such an affidavit from SCRTC, it also does not contain sufficient "probative evidence to refute" its affirmative statement.