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 Pinnacle, Inc. ("Pinnacle"), 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 30, 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 He cited KRS 61.870(1)(h) and KRS 61.872. In its October 10, 2011, response, Pinnacle stated in part: "Pinnacle does not derive twenty-five percent (25%) of its funds expended in the Commonwealth of Kentucky from state and local authorities, thus Pinnacle is not a 'public agency' , as defined in the above referenced statute. Therefore, Pinnacle has no obligation to provide, produce or make available for inspection its records under KRS 61.870(1)(h), as requested." 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, Pinnacle provided an affidavit from its president, Dennis Smith, and an affidavit from its independent accountant Mark A. Schaeffer, CPA, attesting that Pinnacle derives substantially less than 25% of its expended funds from state or local authority revenues. Mr. Rogers' request and subsequent appeal provide no basis upon which to dispute these affidavits. Therefore, under the principles enunciated in 09-ORD-033 (copy attached) , we are unable to find that Pinnacle 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.G. Eric Long, Esq.
Footnotes
Footnotes
1 Unless a "list of expenditures" for the referenced time frame already exists, a public agency would not be obligated to create one. See, e.g., OAG 89-45 (the Open Records Act "does not require public agencies to carry out research or compile information to conform to a given request"); OAG 76-375 (public agencies "are not obligated to compile a list or create a record to satisfy an open records request").