Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Anthony Piccirillo appeals the Newport Teachers Association's refusal to honor his April 30, 2015, open records request for current NTA by-laws and any "in-progress" revisions. NTA responded that it is not a public agency as defined in KRS 61.870. In the absence of proof supporting Mr. Piccirillo's position that the NTA is a "state or local government agency, including the policymaking board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act" under KRS 61.870(1)(f), or that it is a public agency under any of the other definitions found in KRS 61.870(1), we find that the NTA is not subject to the Open Records Act and cannot be said to have violated the Act in refusing to honor his request.
In response to questions submitted to it under authority of KRS 61.880(2)(c), the NTA advised that it is:
a private, unincorporated association that is completely funded by the dues payments of its members. The Newport Teachers Association does not receive any funding from any state or local government agency. The organization is governed by its president, vice president, secretary, treasurer, and director, who are elected by the organization's members. Those members consist of individuals who hold a teaching certificate and are employed by, or on limited leave of absence from, the Newport Independent School District.
In closing, the NTA explained that it is the collective bargaining agent for teachers in the Newport Independent School District.
The term "public agency" is expansively defined at KRS 61.870(1) to include:
(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), (i), or (j) of this subsection; 15-ORD-128 Page 3
(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 (j) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection.
This provision operates in para materia with KRS 61.870(2), and the two statutes must be construed together. KRS 61.870(2) states:
"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. 1
The NTA correctly asserts that an entity that does not fall within the parameters of one or more of the definitions in KRS 61.870(1) is not a public agency, and its records are not public records as defined in KRS 61.870(2).
Despite the expansive language of KRS 61.870(1) and (2), and the clearly expressed legislative intent that the Open Records Act must be strictly construed so as to insure the broadest possible access to public records, 2 the Attorney General has recognized, on a number of occasions, that a private entity is not a public agency for open records purposes 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" or falls under any of the remaining definitions found at KRS 61.870(1). See, e.g., OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 94-ORD-98; 96-ORD-99; 97-ORD-65; 99-ORD-65; 07-ORD-213.
We have located no prior Attorney General's opinion/decision or opinion of the courts in which the NTA, or any other teachers association, has been deemed a public agency for purposes of open records analysis. In OAG 04-014, we described both the Kentucky Education Association and Jefferson County Teachers Associations as labor unions and the JCTA as a local affiliate of the KEA. In Keeling v. Jefferson County Bd. of Educ. , No. 2002-CA-000528-MR (Ky. App. 2003), 3 the court described the JCTA as "an unincorporated association that collectively bargains with [the Jefferson County Board of Education] on behalf of its members." Clearly, the NTA occupies the same role in relation to teachers in the Newport Independent School District.
We have located no information that contradicts the NTA's position that it derives no funds from state or local authority, 4 that it does not owe its existence to "state or local statute, executive order, ordinance, resolution, or other legislative act; " and that its governing body is elected by its members and not appointed by a public agency. There is, therefore, no proof in the record to support Mr. Piccirillo's claim that the NTA is a public agency for open records purposes. We find that the NTA's refusal to honor his request did not violate the Open Records Act.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 Underlying the highlighted language appearing in KRS 61.870(2), when read in conjunction with KRS 61.870(1)(h), is the recognition that, with the exception of funds obtained under a contract obtained through a competitively bid procurement process, "[a]s far as open records are concerned, it is apparently the policy of the legislature that wherever public funds go, public interest follows," OAG 80-633, p. 2, citing OAG 76-648, and that the "use of [public] funds is a matter of public stewardship . . . and we can see no justification for keeping such records secret from the public." OAG 80-633, p. 2.
2 KRS 61.871.
3 Keeling is an unpublished opinion that may be cited for consideration if there is no published opinion that adequately addresses the issue. CR 76.28(4)(c).
4 In an opinion issued in 1955, (37,443), the Attorney General suggested that a school board could appropriate funds for teacher membership dues to the KEA. If this remains a permissible practice, and the Newport Independent School District elected to appropriate funds for teacher membership in NTA, our analysis under KRS 61.870(1)(h) would be different. See 93-ORD-96 (decision issued prior to 2010 enactment to KRS 65.310 and 65.312 and holding that dues paid from public funds for county officials' membership in the Kentucky Association of Counties, must be factored into the KRS 61.878(1)(h) 25% threshold, and that KACo was, therefore, a public agency for open records purposes.)