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 insufficiently advised as to the percentage of Trace Creek Construction's expenditures in the Commonwealth that is derived from state or local authority funds, we find that if that percentage is equal to or greater than twenty-five percent, Trace Creek Construction is a public agency for open records purposes and must afford the public access to records that relate "to functions, activities, programs, or operations funded by state or local authority. " KRS 61.8870(1)(h); KRS 61.870(2). If the percentage is less than twenty-five percent, Trace Creek Construction is not a public agency for open records purposes and has no obligation to afford the public access to its records.
On September 29, 2011, John Rogers requested "a list of expenditures of [Trace Creek Construction], 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 [him] . . . with any charges for copying and mailing . . . to be forwarded to [his] attention . . . ." 2 In its October 7, 2011, response, Trace Creek Construction described itself as "a privately-owned, for-profit general contractor/ construction management/design build firm which performs both private and public construction work," but denied that it is a "body which derives at least twenty-five percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." Trace Creek Construction thereafter denied Mr. Rogers' request but did not indicate the percentage of its expended funds that is derived from state or local authority funds.
To facilitate our review of the issue on appeal, namely, Trace Creek Construction's public agency status under the Open Records Act, on November 3, 2011, this office requested "an affidavit and available documentation supporting its position that it is not a public agency as defined in KRS 61.870(1)(h) or any other provision of the [Open Records] Act." 3 In response, Trace Creek Construction submitted the affidavit of the company's sole shareholder and officer, Sanford Howard, confirming that it "is a general contractor/ construction manager/design builder which constructs commercial and industrial buildings for private and public clients in Kentucky, Ohio, and West Virginia." Although Mr. Howard averred that the company "is not a 'body' which receives 25% of its funds from state or local authority funds," he did not indicate the percentage of Trace Creek Construction's expenditures in the Commonwealth it derives from state or local authority funds. 4 Compare 11-ORD-206 (Sullivan & Cozart submits proof that "the aggregate amount received from projects where [it] contracted directly with a state or local authority" represented only 19.96%). Trace Creek Construction's efforts to provide proof in response to our request were laudable. However, that proof is inconclusive as to the company's status under the Open Records Act. See note 4, above.
Trace Creek Construction acknowledges that it derives some of the funds it expends in the Commonwealth from state or local authority funds remitted under contracts with "public clients." It does not indicate what percentage of its expenditures these funds represent. Without this information, we cannot conclusively determine whether it is a public agency pursuant to KRS 61.870(1)(h) and whether it violated the Open Records Act in denying Mr. Rogers' request. Accordingly we find that if Trace Creek Construction derives at last twenty-five percent of the funds it expends in the Commonwealth from state or local authority funds, it is a public agency pursuant to KRS 61.870(1)(h) and its denial of Mr. Rogers' request for records, insofar as that request relates to records related to functions, actions, programs or operations funded by state or local authority, constituted a violation of the Open Records Act. If it does not derive at least twenty-five percent of the funds it expends in the Commonwealth from state or local authority funds, it is not a public agency pursuant to KRS 61.870(1)(h) and did not violate the Open Records Act in denying Mr. Rogers' 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 RogersWilliam G. Geisen
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, Trace Creek Construction 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").
2 If Trace Creek Construction is a public agency pursuant to KRS 61.870(1)(h), it is not obligated to mail Mr. Rogers the responsive record or records. KRS 61.872(3)(b) relieves an 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 payee or check number, and, if it is a public agency, Trace Creek Construction is not required to mail him imprecisely described records.
3 Authority for such a request is found in KRS 61.880(2)(c) which provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
4 Unfortunately, this statement lends itself to a variety of interpretations. It is unclear whether Trace Creek Construction is arguing that it does not qualify as a "body" within the meaning of KRS 61.870(1)(h), whether it is contesting the character of the "funding" it receives under its contracts with public entities, or whether it is expressly affirming that its expended public funding does not reach the twenty-five percent threshold. It is the percentage of its state or local funding on which we focus and which is unavailable to us.