Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, 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 Arnold Consulting Engineering Services, Inc., a private for-profit corporation, has presented uncontested evidence that it does not meet the definition of a "public agency" under KRS 61.870(1)(h). Accordingly, it is not obligated to afford John Rogers access to records responsive to his October 10, 2011, request for a list of the company's expenditures from January 1, 2011, to August 31, 2011.
Mr. Rogers specifically requested "a list of expenditures of your company, 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 In its October 13, 2011, response, Arnold Consulting Engineering Services ("ACES") stated in part: "[W]e are not convinced that KRS 61.870 or KRS 61.872 applies to Arnold Consulting and [ sic ] Engineering. In that regard, we would ask upon whose behalf your request is being made and why you believe that this request is proper." From that response, Mr. Rogers initiated this appeal to the Attorney General.
KRS 61.870(1)(h) defines "public agency" as including 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." In supplemental correspondence directed to this office, ACES provided an affidavit from its president, Jeffery Allen Arnold, in which he attests that ACES does not derive 25% of its funding from state or local authority funds, and, furthermore, does not fit any other category within the definition of "public agency" in KRS 61.870(1). Mr. Rogers' request and subsequent appeal provide no basis upon which to dispute Mr. Arnold's affidavit. Therefore, under the principles enunciated in 09-ORD-033 (copy attached) , we are unable to find that ACES is a public agency, and therefore it was not obligated to comply with Mr. Rogers' request under the Open Records Act. See also 11-ORD-197 (copy attached) and authorities cited therein.
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 RogersHarlan E. Judd, III, Esq.
Footnotes
Footnotes