Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether ARAMARK Correctional Services, LLC ("Aramark"), violated the Open Records Act in the disposition of Eastern Kentucky Correctional Complex (EKCC) inmate James Harrison's request for copies of various listed items. For the reasons that follow, we cannot conclude that a violation of the Act occurred.
On October 13, 2012, Mr. Harrison sent a request to "Aramark Corporation" at 400 East Main Street in Frankfort, Kentucky, 1 stating in relevant part as follows:
Pursuant to Kentucky Open Records Act as codified in Kentucky Revised Statutes Chapter 61.872 thru KRS 61.884, which is applicable to this Corporation in relationship with the Kentucky Department of Corrections [KDOC], a state agency in which your Corporation is in contract.
Due to the fact that one of your employees identified as Trease Gullett has conspired with KDOC employees here at the Eastern Kentucky Correctional Complex ? to violate inmates' due process rights relating to the Kosher program, including myself, it has become necessary for me to obtain for review the following documents.
Having received no answer, Mr. Harrison initiated an open records appeal with this office on November 1, 2012. Aramark responded on November 15, 2012, through Assistant General Counsel Susan Lucarro, who asserts that Aramark never received Mr. Harrison's request and that its records are not subject to the Open Records Act because Aramark is not a public agency as defined in KRS 61.870(1).
KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person." As defined in KRS 61.870(2), "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.
Resolution of this appeal depends in part on whether Aramark is a public agency within the meaning of KRS 61.870(1). As amended in the 2012 legislative session, KRS 61.870(1) defines "public agency" as including:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, 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 shall not be included in the determination of whether a body is a public agency under this subsection;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies here each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection.
There is no basis in the record upon which to conclude that Aramark is a public agency within this definition.
Aramark is a corporation located in Pennsylvania, a fact which would seem to exclude every possible category of "public agency" except KRS 61.870(1)(h), and Mr. Harrison cited only Aramark's contractual relationship with the Department of Corrections in support of his request. Under the recently amended subsection (1)(h), funds derived from a contract for goods or services that is "obtained through a public competitive procurement process" cannot be counted toward determining whether an entity is a public agency. This office has confirmed, through Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet, that Aramark's contract with the Department of Corrections was obtained through a public competitive procurement process. Therefore, we must conclude that Aramark is not a public agency under KRS 61.870(1) and accordingly is not required to comply with the provisions of the Open Records Act. 96-ORD-197.
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 proceedings.
Distributed to:
James Harrison, # 095435Amy V. Barker, Esq.Sarah Luccaro, Esq.
Footnotes
Footnotes
1 The record indicates that this address belongs to Kentucky State University, and therefore Mr. Harrison's request was never received by Aramark.