Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Gresham, Smith and Partners violated the Kentucky Open Records Act in denying John Rogers' October 10, 2011, request for "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[, including but not limited to], checks written to consultants, salaried individuals and organizations." 1 More precisely, the question presented is whether GSP, a General Partnership (according to public information accessible on the Kentucky Secretary of State's website) , 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 GSP. Based upon the unrefuted evidence of record, which establishes that GSP did not derive at least twenty-five percent (25%) of the funds it expended in the Commonwealth of Kentucky from state or local authority funds during the period from January 1, 2011, to present, nor does it otherwise fall within the parameters of KRS 61.870(1), this office concludes that GSP is not subject to, and therefore did not violate the provisions of the Open Records Act.
"Public agency" is broadly defined at KRS 61.870(1) in eleven different ways codified at subsections (a)-(k). Despite the expansive language of KRS 61.870(1), its companion, KRS 61.870(2) (broadly defining "public records" ), 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, 2 the Attorney General has recognized, on a number of occasions, that a private corporation or company, whether not-for-profit or for profit, 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." See KRS 61.870(1) as construed in 97-ORD-114; 99-ORD-65; 02-ORD-41; 05-ORD-012; 06-ORD-220; 08-ORD-024; 09-ORD-033; 09-ORD-083; 11-ORD-021; 11-ORD-040; 11-ORD-142. No evidence has been presented to suggest that GSP would qualify as a public agency under KRS 61.870(1)(a) , (b), (c), (d), (e), (f), (g), (j), or (k); 3 likewise, 61.870(1)(i) is facially inapplicable given that its governing body is apparently not appointed by a public agency. KRS 61.870(1)(h) is the only subsection that is potentially applicable.
In 09-ORD-033 (Deborah H. Patterson/M.A. Mortenson Company, issued February 19, 2009), the Open Records Decision which 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), 4 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). This office adopted the interpretation of KRS 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." 5 09-ORD-033, p. 6.
In that appeal, 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). A copy of that decision is attached hereto and incorporated by reference. This office reached the same conclusion based upon the unrefuted affidavit provided on behalf of the "body" whose status was in dispute on several recent occasions. See 09-ORD-083; 09-ORD-085; 09-ORD-096; 10-ORD-113; 11-ORD-109; 11-ORD-142. Most recently, this office concluded that Abel Construction Company, Inc. is not a "public agency" within the meaning of KRS 61.870(1)(h) based upon the unrefuted affidavit of its Vice President and Chief Financial Officer, which confirmed that Abel did not satisfy the 25% threshold of that provision. 11-ORD-191 (In re: John Rogers/Abel Construction Company, Inc., issued November 15, 2011), p. 6. A copy of the latter decision is also enclosed for the parties' reference. See also 11-ORD-197.
In responding to Mr. Rogers' October 10 request, GSP merely advised Mr. Rogers that it "is not a public agency under KRS 61.870(1)(h)" and its records are thus not subject to disclosure under the Open Records Act. However, in responding to his appeal, Phillip M. Longmeyer, legal counsel for GSP in this matter, further explained that GSP "is a private partnership headquartered in Tennessee . . . [which] operates in nine states and two countries." According to Mr. Longmeyer, GSP is not a "public agency" within the meaning of KRS 61.870(1). "Particularly," Mr. Longmeyer observed, GSP "is not a 'body which derives at least 25 (%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds.' KRS 61.870(1)(h)." In support of this assertion, GSP provided this office with an affidavit from GSP Chief Financial Officer Dwayne West, advising that he "reviewed the financial records of [GSP] for the year beginning January 1, 2011, through to the present." Based on his review of those records, Mr. West estimated that the funds GSP "derives from Kentucky state or local authorities comprise[] less than 25% of the funds expended by [GSP] on its operations in the Commonwealth of Kentucky."
When, as here, evidence is introduced that an otherwise private corporation or company receives less than 25% of the funds it expends in the Commonwealth from state or local authorities, the Attorney General has consistently held that it cannot be properly characterized as a public agency. 09-ORD-083; 10-ORD-113; 11-ORD-040; 11-ORD-142; 11-ORD-191. Consistent with prior decisions applying KRS 61.870(1)(h), as reinterpreted in 09-ORD-033, "the Attorney General finds that [GSP] 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. Consideration of the substantive arguments raised in support of its denial is therefore unwarranted.
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 RogersTheresa CrowPhillip M. Longmeyer
Footnotes
Footnotes
1 This office has long recognized that a "public agency" is not statutorily required to create a record or compile a list in order to comply with a request under the Act; however, in lieu of doing so a "public agency" must provide the requester with an opportunity to inspect existing non-exempt records which may contain the information being sought. See 09-ORD-145, pp. 8-9. Generally speaking, however, the financial and operational records of a "public agency" are open for inspection. 05-ORD-065, p. 9. See OAG 76-648 (holding that "wherever public funds go, public interest follows"); OAG 82-169 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law"); OAG 90-30 (holding that "amounts paid from public coffers are perhaps of uniquely public concern"); OAG 91-7 (holding that "records of bills paid, payroll check stubs or cancelled checks, and all other records which show funds received and disbursed are public records" ). See also 10-ORD-140.
2 KRS 61.871.
3 Though not dispositive standing alone, information publicly available on the Secretary of State's website reveals that GSP is a "General Partnership," with "Active" status, whose principal office is located in Nashville, TN. By conventional indicia, in other words, GSP is a private business that is not subject to the Open Records Act unless it satisfies the KRS 61.870(1)(h) threshold. See 11-ORD-040; 11-ORD-142; 11-ORD-191.
4 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." Having done so, the Court ultimately held that KRS 61.870(1)(h) "is not unconstitutionally vague, ambiguous or unintelligible." University Health Care, above, at p. 7. 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.
5 In so doing, this office reminded the parties that in Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008), the Kentucky Supreme Court expressly recognized the prerogative of the Attorney General to depart from precedent, declaring that the "Attorney General was permitted to reexamine -- and even reject -- its former interpretation of the law."