Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Schutzman Inspection Services, LLC, violated the Open Records Act by failing to respond to Craig T. Bohman's December 23, 2013, request to inspect:
1. email created, received, sent, or destroyed by Joseph A. Schutzman from any email accounts used or accessible to Mr. Schutzman that reference building and zoning work or "documents performed by Schutzman Inspection Services for any and all public agencies from December 1, 2010, to June 1, 2012"[;]
2. the schedule of building inspections performed by Joseph A. Schutzman for any public agencies from December 1, 2010, to June 1, 2012[; and]
3. all documents that were created, destroyed, or came into the possession of Joseph A. Schutzman from July 2000 to May 23, 2013, in the course of his duties as the Villa Hills building and zoning inspector.
Mr. Bohman received no response to his request prompting him to initiate this appeal. To date, Schutzman Inspection Services has maintained its silence. To the extent that Schutzman Inspection Services derives 25% or more of the funds it expends in Kentucky from state or local authority funds, and those funds are not derived from state or local authority in compensation for goods or services provided by a contract obtained through a public procurement process, we must conclude that Schutzman Inspection Services is a public agency for purposes of open records analysis. Its records are publicly accessible per KRS 61.870(2) and KRS 61.872(1) to the extent they relate to "functions, activities, programs, or operations funded by state or local authority. " .
In his letter of appeal, Mr. Bohman characterizes Schutzman Inspection Services as "the current or previous building, zoning, code enforcement, and flood plain administrator for the cities of Villa Hills, Ludlow, and Bromley, Kentucky." He expresses the belief that Schutzman Inspection Services "provides these services only to government agencies through non-bid contracts and that more than 25% of the revenue of Schutzman Inspection Services comes from these governmental sources." Noting that Villa Hills' contract with Schutzman Inspection Services was terminated in May 2013, Mr. Bohman also expresses concern that the company's owner "failed to return public documents" despite repeated requests.
Given the company's silence, in the face of Mr. Bohman's request and the Attorney General's 40 KAR 030 Section 2 notification of his appeal, on February 11, 2014, this office submitted a series of questions to Schutzman Inspection Services and its owner aimed at confirming or refuting Mr. Bohman's claim. Authority for our inquiry is found at KRS 61.880(2)(c). 1 Specifically, we asked whether Schutzman Inspection Services currently derives, or in the past derived, any funding from state or local authority funds and, if so, in what amounts. Additionally, we asked what percentage of the funds it expends in Kentucky are state or local authority funds, and, if some are, whether it received the state or local authority funds as compensation for services provided under a competitively bid contract. Notwithstanding our admonition that "[f]ailure to respond to these questions may result in an adverse ruling by the Attorney General," Schutzman Inspection Services did not respond to our request for additional information. Accordingly, the record on appeal contains no rebuttal to Mr. Bohman's allegation that Schutzman Inspection Services derives most, if not all, of the funds it expends in Kentucky from state or local authority funds received as compensation for services provided under non-competitively bid contracts. 2
In 12-ORD-222 3 this Office confirmed that the entity whose records were sought, ARAMARK Correctional Services, LLC, received public funds only under a contract obtained through a competitive procurement process and that it did not, therefore, fall within the parameters of KRS 61.870(1)(h) insofar as those state or local funds were statutorily excluded from the 25% threshold. The decision reflects that ARAMARK's general counsel denied her client's status as a public agency, and that we received confirmation that its contract was obtained through a public competitive procurement process. Similarly, the record on appeal in 14-ORD-003 confirmed that Bluegrass Industrial Foundation, Inc., the entity whose records were sought, received 74% to 87% of the funds it expended in a four year period from a single public agency, the Bluegrass Area Development District, under a non-bid rent agreement with the district. We therefore concluded that the foundation was a public agency for purposes of open records analysis. Despite being afforded three opportunities to do so, Schutzman Inspection Services did not deny its status as a public agency and offered no proof to refute Mr. Bohman's claims. We must therefore find that, to the extent that Schutzman Inspection Services derives 25% or more of the funds it expends in Kentucky from state or local authority funds, it is a public agency, within the meaning of KRS 61.870(1)(h), and that it violated the Open Records Act by failing to respond to Mr. Bohman's request 4 and to facilitate his inspection of records responsive to his December 23, 2013, request. 5
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:
Craig T. BohmanJoseph A. Schutzman
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation . The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
2 In 04-ORD-061, the Attorney General analyzed the City of Villa Hills' response to a request for contracts with and time records for Schutzman Inspection Services from January 2001 to February 2004. Clearly a contractual relationship existed between Villa Hills and Schutzman during the referenced time frame and for a period of time preceding the May 2013 termination of the contract. Schutzman Inspection Services thus derived, at that time, a percentage of its funding from at least one local authority.
3 The decisions cited were issued after the July 2012 amendment to KRS 61.870(1)(h) took effect.
4 KRS 61.880(1).
5 KRS 61.872(1).