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 Trover Clinic Foundation, Inc.'s expenditures in the Common-wealth that is derived from state or local authority funds in its 2009 and 2010 fiscal years, we find that if the percentage was equal to or greater than twenty-five percent, Trover was 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" during those years. KRS 61.870(1)(h); KRS 61.870(2). If the percentage was less than twenty-five percent, Trover was not a public agency for open records purposes and has no obligation to afford the public access to records for those years.
By letter dated December 16, 2011, Jonathan Kirk Haynes requested Trover Clinic Foundation, Inc.'s 2009 and 2010 balance sheets and income statements. On December 22, 2011, Trover's registered agent and corporate compliance officer, Jerry Kelley, denied Mr. Haynes' request, advising him that Trover is not a public agency. Shortly thereafter, Mr. Haynes initiated this appeal. Upon receipt of this office's notification of receipt of Mr. Haynes' appeal, Mr. Kelley confirmed that Trover "does not derive 25% of its funds from the Commonwealth of Kentucky or any local authorities." Continuing, Mr. Kelley noted that Trover "has no governance relationship with any city, county, or state government department, division, bureau, board, commission, authority, governing body, council, or municipal corporation." Finally, he denied that Trover's board was "established, created, or controlled by a public agency" and that its governing body is "appointed by a public agency. "
To facilitate our review of the issue on appeal, this office subsequently asked Trover to "provide us with 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." 1 Trover responded by providing us with an affidavit prepared by its chief financial officer, Mr. Thomas Moore, and other documents supporting its position. In his affidavit, Mr. Moore attested that Trover, which operates under the assumed name Regional Medical Center of Hopkins County, derived less than 2% of its revenue from state or local authority in the fiscal year ending December 31, 2011, excluding Medicare and Medicaid funds, but did not provide supporting information for the 2009 and 2010 fiscal years which were the focus of Mr. Haynes' request.
Trover confirms receipt of substantially less than twenty-five percent of the funds it expends in the Commonwealth from state and local authority funds in the fiscal year ending on December 31, 2011. The omission of financial information for the previous two fiscal years precludes us from conclusively determining whether Trover was a public agency pursuant to KRS 61.870(1)(h) during the relevant period. If Trover derived at least twenty-five percent of the funds it expended in the Commonwealth from state or local authority funds in fiscal years 2009 and 2010, it was a public agency pursuant to KRS 61.870(1)(h), and its denial of Mr. Haynes' request for records, insofar as that request relates to functions, activities, programs, or operations funded by state or local authority, 2 constituted a violation of the Open Records Act. 3 If Trover did not derive at least twenty-five percent of the funds it expended in the Commonwealth from state or local authority funds in fiscal years 2009 and 2010, it was not a public agency pursuant to KRS 61.870(1)(h) during the relevant period and did not violate the Open Records Act in denying Mr. Haynes' request. Accord, 12-ORD-009; 12-ORD-058.
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:
Jonathan Kirk HaynesJerry KelleyLeif Ratliff
Footnotes
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