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 because Green Construction Co., Inc., acknowledges its status as a public agency pursuant to KRS 61.870(1)(h) for calendar year 2011, it is obligated to afford John Rogers access to records responsive to his September 29, 2011, request for expenditures from January 1, 2011, to August 31, 2011, to the extent the expenditures are "related to functions, activities, programs, or operations funded by state or local authority. " KRS 61.870(2). Green Construction Co., Inc., is not obligated to mail Mr. Rogers copies of responsive records since he did not "precisely describe[]" the expenditure records he wished to access. KRS 61.872(3)(b). Mr. Rogers, on the other hand, is not obligated to "disclose the identity of his client and its particular interest in this matter," but may be asked to certify if he intends to use the records for a commercial purpose, as defined at KRS 61.870(4)(b), and if so, what that commercial purpose is. KRS 61.874(4)(b).
On September 29, 2011, Mr. Rogers requested "a list of expenditures of [Green Construction Co., Inc.], including check number, date, amount and payee for all checks written from January 1, 2011, to August 31, 2011, . . . includ[ing] checks written to consultants, salaried individuals, and organizations." 1 Mr. Rogers stated that "[t]his information . . . needs to be copied and mailed to us . . . with any charges for copying and mailing . . . to be forwarded to [his] attention . . . ." In its October 12, 2011, response, Green acknowledged through counsel that it "secures state construction contracts which comply with provisions of KRS 45A.030," but did not take "a final position . . . as to whether it is a public agency . . . ." Assuming, for the sake of argument, that Green is a public agency for open records purposes, counsel asserted that "disclosure of 'all checks' written . . . during the requested time frame would unfairly advantage competitors by allowing them to easily ascertain the economic status of the Corporation." Citing
Marina Management Services, Inc. v. Commonwealth, Cabinet for Tourism, 906 S.W.2d 318 (Ky. 1995) and 08-ORD-036. For this reason, Green asked that Mr. Rogers "refine [his] ORA request in order that the corporation may determine what records . . . [abridge] the confidential and proprietary interests of the Corporation with regard to its financial information, " and that he "specify whether [his] interest is . . . commercial or noncommercial as required by KRS 61.874 . . . ." This appeal followed.
In supplemental correspondence directed to this office, Green acknowledged that "for calendar year 2011, it qualifies as a 'public agency' under authority of KRS 61.870(1)(h)," but insisted that "the principal issue" is whether "attorney Rogers is entitled to the broad scope of disclosures that he requests in violation of Green's privacy interests." Green maintained that Mr. Rogers should "specify the subject matter or project in which he seeks disclosure, " along with the identity of his client and his client's "particular interest in this matter," so that "financial information not relevant to his request may be properly withheld." While Mr. Rogers may be required to disclose his intended use of the records, if commercial, that purpose is only relevant in determining the copying costs he can properly be assessed per KRS 61.874(4)(a), (b), and (c)1. and 2. Green's obligation to disclose responsive records is, nevertheless, statutorily restricted to records "related to functions, activities, programs, or operations funded by state or local authority. " KRS 61.870(2).
Records reflecting Green's expenditure of funds derived from state construction contracts are, by definition, public records, per KRS 61.870(2), since they relate to functions, activities, programs or operations funded by state authority. These records must be disclosed regardless of the purpose for which Mr. Rogers requests them or the identity of his client unless Green can articulate a statutory basis for withholding them. Thus, at page 2 of OAG 90-7 this office recognized that "A contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case." Green is not, of course, obliged to disclose records reflecting the expenditures of nonpublic funds, i.e., funds not derived from state contracts or other state or local authority funds.
Nor is Green obliged to mail Mr. Rogers the responsive record or records. KRS 61.872(3)(b) relieves the agency of its duty to mail copies if the requester fails to precisely describe the records sought and the records are not readily available within the agency. Mr. Rogers did not request a particular check by check number or payee, and Green can therefore require him to conduct an onsite inspection of the records imprecisely identified in his request. Moreover, Green can require Mr. Rogers to submit a certified statement indicating whether his intended use of the records is noncommercial or commercial. If Mr. Rogers certifies a commercial purpose, he may be required to state how the records will be used. KRS 61.874(4)(b). That purpose is, as noted, relevant only for purposes of calculating the proper copying costs. It does not otherwise constitute a basis for denying his 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:
John RogersJ.P. ClineClarence R. Green
Footnotes
Footnotes
1 We note that Mr. Rogers requested a "list of expenditures. " Unless a list of expenditures for the referenced time frame already exists, Green is not obligated to create one. See, e.g., OAG 89-45 (recognizing that the Open Records Act "does not require public agencies to carry out research or compile information to conform to a given request"). See also, OAG 76-375 (recognizing that public agencies "are not obligated to compile a list or create a record to satisfy an open records request").