Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, 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, this office finds that because Scotty's Contracting & Stone ("Scotty's") acknowledges "that during the current fiscal year, at least, the amount of payments it received pursuant to contracts for services with the state equaled at least 25% of the amount of monies it expended in the state," it can be properly characterized as a "public agency" within the meaning of KRS 61.870(1)(h). Accordingly, Scotty's must provide John Rogers with access to records responsive to his October 3, 2011, request for expenditures 1 made from January 1, 2011, to August 31, 2011, to the extent such expenditures are "related to functions, activities, programs, or operations funded by state or local authority. " KRS 61.870(2). Scotty's is not statutorily obligated to mail copies of any existing responsive records to Mr. Rogers because he failed to "precisely describe[]" the records being sought and, therefore, may be required to conduct on-site inspection of the records prior to receiving copies. KRS 61.872(3)(b). The analysis contained in 11-ORD-199 (In re: John Rogers/Green Construction Co., Inc.) and 12-ORD-015 (John Rogers/HMB Professional Engineers, Inc.) is controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference.
Records documenting Scotty's expenditure of funds derived from state contracts are, by definition, public records, per KRS 61.870(2), since they relate to functions, activities, programs or operations funded by state authority. Such records must be disclosed regardless of the purpose for which Mr. Rogers requests them or the identity of his client unless Scotty's can articulate a statutory basis for withholding them. Thus, at page 2 of OAG 90-7 this office recognized that "A contractor to a governmental entity . . . must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case." See 12-ORD-006. Scotty's is not, of course, obliged to disclose records documenting the expenditure of nonpublic funds, i.e., funds not derived from state contracts or other state or local authority funds.
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 RogersFranklin K. Jelsma
Footnotes
Footnotes