Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Joey F. Stanton or Stanton Consulting, LLC, whose sole member, organizer, and registered agent is Joey F. Stanton, 1 violated the Kentucky Open Records Act in denying Mignon Colley's July 17, 2012, request to inspect any and all "public records," within the meaning of KRS 61.870(2), 2 "including notes taken by anyone in meeting [sic] with you Joey Stanton related to the Jail" or "hard disks on a computer if any information . . . on the computer is prepared by you Joey Stanton or sent to you via computer networking," that "related to the Jail in Carter County or Boyd County," and records documenting "[m]ileage reimbursements, " including "how many miles and where the mileage occurred," and if reimbursement "was related to a meeting with anyone then who attended the meetings and what was the nature of the meeting." Ms. Colley also requested time sheets reflecting "work performed and the nature of the work performed when not on the physical grounds of the Carter County Courthouse" and the "contract, . . . insurance, . . . and bonding papers" for the period in which Mr. Stanton was "hired and paid as Stanton Consulting[.]" In a timely written response, Mr. Stanton "respectfully declin[ed]" to honor the request because he disagreed with Ms. Colley's position that provisions of the Open Records Act applied to him. This appeal followed.
Upon receiving notification of Ms. Colley's appeal from this office, Mr. Stanton supplemented his original response, initially reiterating that he does not believe that he is "a 'public agency' under the Open Records [Act]." 3 Mr. Stanton also provided the following relevant information:
. he was hired by the Carter County Judge Executive to assist in reviewing the prospect of creating a Regional Jail;
. in that capacity he performed an analysis of the current jail operation and made projections for a regional jail in conjunction with Boyd County;
. he is a resident of Grayson County, and was therefore reimbursed for mileage expenses when he performed services in a different county;
. he submitted invoices for services performed, and for mileage reimbursement, which he submitted to Carter County Fiscal Court prior to payment;
. his invoices are available from the Fiscal Court and have been supplied in response to several open records requests made of Carter [County] Judge Executive Charles Wallace;
. in June the Fiscal Court hired him to assist with "jail related issues" and he is being paid on an hourly basis for performing these services;
. he also submitted time sheets for this work and received payments;
. Stanton Consulting performs services for both governmental and private entities; and
. he did not maintain records to reflect percentages of revenue from the various sources.
Due to the contentious and ongoing nature of issues regarding the proposed Northeast Regional Jail Authority, Mr. Stanton subsequently determined that, regardless of any decision rendered by this office, it was advisable to release all existing responsive documents in his possession. Attached to his August 15 supplemental response was a copy of his letter to Ms. Colley of the same date. Specifically, Mr. Stanton advised her that "items responsive to the first paragraph of your request are the invoices that I submitted to the Carter [County] Fiscal Court, [and] a projection made regarding the potential operation of a regional jail authority," copies of which Mr. Stanton enclosed. He reiterated that said records are "the only records that I have[.]" Mr. Stanton further explained that his "mileage reimbursements are contained within" his invoices and he does not "have notes regarding any meeting attended [.]" Time sheets "were turned into the Carter [County] Fiscal Court," Mr. Stanton advised, "where they are to my best knowledge retained. I did not retain copies of any time sheets turned in. The work was performed both at the courthouse and at other locations." Again, he confirmed that "[n]o records exist other than those provided." Finally, Mr. Stanton explained that he did not have a contract with Carter County. He was unsure of the kind of insurance to which Ms. Colley referred, but advised that he is a "licensed property and casualty agent. For that work I carry an errors and omissions policy. I have homeowners and automobile insurance. I have no bond of any nature." 4
By virtue of his August 15 disclosure of the only existing responsive documents that he possesses, Mr. Stanton essentially mooted the question of whether he or Stanton Consulting can be properly characterized as a "public agency" within the meaning of KRS 61.870(1)(h); 5 accordingly, this office makes no finding on that issue. See 09-ORD-133 and 12-ORD-010 (copies enclosed) for the relevant legal analysis. 6 "[O]bjections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 10-ORD-178, p. 2; 06-ORD-098; 09-ORD-101. Our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute," 01-ORD-36, p. 2, nor is the Attorney General "empowered to substitute its judgment for that of a public agency in deciding which records are necessary to ensure full accountability." 08-ORD-206, p. 1. Moreover, when as in this case, some of the documents requested are disclosed, this office has generally declined to "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 4. Even assuming, for the sake of argument, that KRS 61.870(1) applies to Mr. Stanton or Stanton Consulting, the current dispute "is factual, and not legal, in nature." 06-ORD-266, p. 6.
As recently as earlier this month, this office was confronted with a nearly identical factual scenario. In 12-ORD-165, this office was asked to determine whether Stanton Consulting, LLC violated the Open Records Act in denying a request for five enumerated categories of records also largely related to the Carter County Fiscal Court and/or Judge/Executive. Though Mr. Stanton initially declined to comply with said request, denying that he was a "public agency" for purposes of the Open Records Act, he ultimately released all existing responsive documents that he possessed, citing the same reasons provided in the instant appeal. The reasoning upon which 12-ORD-165 was premised, specifically that found at pp. 6-9, is equally controlling here; a copy of that decision is attached hereto and incorporated by reference.
"Notwithstanding the legitimate questions or underlying concerns that [Ms. Colley] has raised," no legal authority has been cited that would require Mr. Stanton to create or maintain additional responsive documents, nor does the record on appeal contain any irrefutable proof that additional records were created or exist in the possession of Mr. Stanton/Stanton Consulting. 12-ORD-165, p. 8. As in 12-ORD-130, a prior appeal involving Mr. Stanton and the same requester who initiated the appeal that culminated in 12-ORD-165, the absence of records documenting the relationship between the Fiscal Court and/or Judge/Executive, and Stanton Consulting and/or Joey Stanton, or the lack of additional responsive documents generally, is, simply stated, not actionable in an Open Records Appeal. 12-ORD-130, p. 5. "Perhaps [additional responsive] documentation should exist, but the Act addresses access to records that do exist." 12-ORD-130, p. 5 (original emphasis); 12-ORD-165, p. 9.
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:
Mignon ColleyJoey F. StantonCharles WallacePatrick Flannery
Footnotes
Footnotes
1 Though not dispositive regarding the status of Stanton Consulting, information publicly available on the website for the Kentucky Secretary of State confirms that Stanton Consulting, LLC is a "Kentucky Limited Liability Company (KLC)," with "Active Status," in "Good" standing, whose principal office is located in Leitchfield, Kentucky. Simply put, Stanton Consulting is a private, for-profit company that is not subject to the Open Records Act unless it satisfies the 25% threshold of KRS 61.870(1)(h). See 11-ORD-040; 11-ORD-142; 11-ORD-191; 12-ORD-006.
2 KRS 61.870(2) provides:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
3 Carter County Attorney Patrick Flannery advised this office, by letter dated August 1, 2012, that he "was not contacted by Joey Stanton nor did I advise him regarding his response to" Mr. Deckard's request. "No request was made to the Fiscal Court," Mr. Flannery continued, "only to Joey Stanton individually." Mr. Flannery also noted that Mr. Stanton "was arguably (disputed) a private consultant of the Carter County Fiscal Court for a period of time and is now better defined as an employee of the County Judge/Executive at the time of the request." (Original emphasis.) Deferring to the Attorney General on the question of whether "the new revisions to KRS 61.870(1)(h) apply in part to his time as a 'consultant,'" Mr. Flannery is "of the opinion that it applies to [Mr. Stanton] as a public employee."
Effective July 12, 2012, KRS 61.870(1)(h) was amended to specifically exclude "any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process" from the determination of whether a "body which, within any fiscal year," has derived "at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." The addition of this language is the "new revision[]" to which Mr. Flannery referred.
4 Ms. Colley subsequently clarified that she was "requesting Professional Liability Insurance you have in regard to Stanton Consulting, LLC." Mr. Stanton promptly advised that he does "not have insurance on my business that you have requested." The record is devoid of evidence to contradict Mr. Stanton's assertion.
5 Public agency" is broadly defined at KRS 61.870(1) in eleven different ways codified at subsections (a)-(k). Despite the expansive language of KRS 61.870(1), its companion, KRS 61.870(2) (broadly defining "public records"), and the clearly expressed legislative intent that the Open Records Act must be strictly construed so as to ensure the broadest possible access to public records, codified at KRS 61.871, the Attorney General has recognized, on a number of occasions, that a private corporation or company, whether not-for-profit or for-profit, is not a public agency for purposes of the Open Records Act unless it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." See KRS 61.870(1) as construed in 97-ORD-114; 99-ORD-65; 05-ORD-012; 06-ORD-220; 08-ORD-024; 09-ORD-033; 11-ORD-142; 12-ORD-010.
6 In 09-ORD-033, the Attorney General recognized that his "authority under KRS 61.880(2) 'to request additional documentation' extends to agencies, not to bodies that dispute their status as such," and that said limitation "puts the Attorney General in an untenable position relative to compulsory disclosure of supporting documentation." This office expressed concern that "[a]lthough KRS 61.880(2)(c) assigns the burden of proof to public agencies resisting disclosure of records, where, as here, the 'body' disputes its status as a 'public agency,' that body cannot properly be assigned the statutory burden of proof." Id. at 10.