Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Mountain Enterprises, Inc. violated the Kentucky Open Records Act in failing to issue a written response to John Rogers' October 3, 2011, request for "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[, including but not limited to], checks written to consultants, salaried individuals and organizations." 1 More precisely, the question presented is whether Mountain Enterprises is a "public agency" within the meaning of KRS 61.870(1). Resolution of this determinative question turns on the application of KRS 61.870(1)(h), as reinterpreted in 09-ORD-033, to Mountain Enterprises. 2
In response to Mr. Rogers' February 7, 2012, appeal challenging its failure to issue a written response per KRS 61.880(1), Mountain Enterprises denied Mr. Rogers' request, asserting that KRS 61.870(1)(h) "should be interpreted in a limited capacity to only include government bodies" and "was meant to only include entities which receive funding from the Commonwealth through grants, donations or the like" rather than "private companies which contract with the Commonwealth in its limited capacity as a market participant." Mountain Enterprises further argued that even if Mountain Enterprises is considered a "public agency, " the records in dispute are not "public records" within the meaning of KRS 61.870(2) as "the only documents related to Mountain Enterprises' contract with the Commonwealth would be the actual contract." 3
To facilitate a correct resolution of the question presented, namely, whether Mountain Enterprises, an otherwise private corporation, is a "public agency, " for purposes of the Open Records Act, on March 6, 2012, this office requested, under authority of KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, "an affidavit (specifying the percentage of the funds expended in the Commonwealth by Mountain Enterprises that was derived from state or local authorities, including state or local contracts) and supporting documentation to further substantiate its position regarding application of KRS 61.870(1), and 61.870(1)(h) in particular. However, Mountain Enterprises implicitly declined to comply, opting instead to reiterate its earlier arguments. Mountain Enterprises further observed that it "cannot accurately determine what percentage of its funds is derived from state and local authorities" because it "makes a significant percentage of its income from performing various paving contracts" and some of those "are funded by Federal match money." Finally, Mountain Enterprises enclosed a copy of the proposed amendment to KRS 61.870(1), known as House Bill 496, which excludes "companies similar to Mountain" from the definition of "public agency. " 4 Because the referenced amendment does not become effective until July 12, 2012, and the Open Records Act does not contain any mechanism for holding appeals filed thereunder in abeyance, this office must respectfully decline Mountain Enterprises' request to "refrain from issuing a decision on this matter." 5
The record on appeal remains inconclusive regarding the percentage of public funds expended by Mountain Enterprises in the Commonwealth; accordingly, this office is unable to conclusively resolve the threshold question of whether Mountain Enterprises is a "public agency" within the meaning of KRS 61.870(1)(h). For the foregoing reasons, the Attorney General concludes that Mountain Enterprises is a "public agency" for purposes of the Open Records Act if at least 25% of the funds it expends in the Commonwealth is derived from state or local authority funds, and its denial of Mr. Rogers' request as to existing records which are related to functions, activities, programs or operations funded by state or local authorities constituted a violation of the Act. Conversely, if Mountain Enterprises does not derive at least 25% of the funds it expends in the Commonwealth from such funds, it cannot be properly characterized as a "public agency" for purposes of the Open Records Act, nor did it violate the 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 RogersTim OsborneNorm Daniels
Footnotes
Footnotes
1 This office has long recognized that a "public agency" is not statutorily required to create a record or compile a list in order to comply with a request under the Act; however, in lieu of doing so a "public agency" must provide the requester with an opportunity to inspect existing non-exempt records which may contain the information being sought. See 09-ORD-145, pp. 8-9. Generally speaking, however, the financial and operational records of a "public agency" are open for inspection. 05-ORD-065, p. 9. See OAG 76-648 (holding that "wherever public funds go, public interest follows"); OAG 82-169 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law"); OAG 90-30 (holding that "amounts paid from public coffers are perhaps of uniquely public concern"). See also 10-ORD-140.
2 In University Health Care, Inc. v. The Courier-Journal , No. 10-CI-04753 (Jefferson Circuit Court-Division Twelve, March 11, 2011), another Division of Jefferson Circuit Court acknowledged the holding of William W. Chilton v. M.A. Mortenson Company , above, but went on to find "that, while deference is, of course, given to the decisions of its brothers and sisters on the Bench, those determinations in no way affect the conclusions of this Court." Having done so, the Court ultimately held that KRS 61.870(1)(h) "is not unconstitutionally vague, ambiguous or unintelligible." University Health Care, above, at p. 7. These conflicting opinions from different divisions of the same circuit amply illustrate why this office has taken the approach of continuing to follow existing precedent, both in general, and specifically in relation to KRS 61.870(1)(h), until a published opinion by either the Supreme Court or the Court of Appeals to the contrary is rendered or the statute is amended.
3 With regard to application of KRS 61.878(1)(a) and 61.878(1)(c)1., which Mountain Enterprises also invoked, this office refers the parties to 11-ORD-199 (In re: John Rogers/Green Construction Co., Inc.) for the relevant legal analysis. For purposes of this decision, it suffices to say that both arguments have been rejected, either implicitly or explicitly.
4 HB 496, "AN ACT relating to open records," provided: "Amend KRS 61.870 to exclude funds derived from a state or local authority in compensation for goods or services provided by a contract obtained through a public procurement process from the determination of whether an entity is a public agency under the public records statutes."
5 This office must apply KRS 61.870(1)(h) as written until such time as the amendment, which the General Assembly passed during the 2012 Regular Session, becomes effective. See OAG 12-006.