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 Veolia Water North America -- South, LLC ("Veolia South"), 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 September 29, 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 4, 2011, response, Veolia South stated in part: "Veolia Water is a private contract operator of water and wastewater facilities, not a 'public agency' under KRS 61.870 and KRS 61.872. We suggest you direct any requests for information under KRS 61.870 and KRS 61.872 to the City of Radcliff, Kentucky or to our client, Hardin County Water District No. 1." 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, Veolia South provided an affidavit from its vice president and assistant general counsel, Van A. Cates, in which he attests that Veolia South does not derive 25% of its funds expended in the Commonwealth of Kentucky from state or local authority funds within the meaning of KRS 61.870(1)(h). Mr. Cates advises that Veolia South is owned by Veolia Water North America Operating Services, LLC ("VNWAOS"), which makes all expenditures for amounts owed by Veolia South, and the sources of those payments are "less than 2% derived" from Veolia South's municipal or public projects in Kentucky. Mr. Rogers' request and subsequent appeal provide no basis upon which to dispute Mr. Cates' affidavit. Therefore, under the principles enunciated in 09-ORD-033 (copy attached) , we are unable to find that Veolia South 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 Rogers, Esq.Van A. Cates, Esq.R. Loy Waldrop, Jr., Esq.George L. Seay, Jr., Esq.W. Paul Whitt, Esq.
Footnotes
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