Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Deborah May Nunley, a Commissioner of the City of Owensboro, violated the Open Records Act in withholding documents held in her capacity as a member of the board of directors of a private entity. We find that Ms. Nunley did not violate the Open Records Act in withholding documents held in her capacity as a member of the board of directors of a private entity.
The Messenger-Inquirer submitted an open records request to Ms. Nunley by email on Apr. 21, 2016. 1 Ms. Nunley serves as a Commissioner of the City of Owensboro, and also as chair of the board of directors of Owensboro Health, Inc. ("Owensboro Health"). 2 The Messenger-Inquirer requested "any and all records pertaining to the resignation of Owensboro Health President and CEO Philip Patterson," including "all email correspondence to or from any city or county official or employee concerning Mr. Patterson's resignation. " 3 The Messenger-Inquirer noted that "we are seeking the records specifically from you because of your role as chair of the Owensboro Health board in your capacity as a city commissioner appointed by the city of Owensboro as its representative on the hospital board." Ms. Nunley responded to the request on Apr. 22, 2016, stating that "I have no city county emails pertaining to the resignation of Mr. Patterson." Ms. Nunley sent a follow-up email that day, stating, "I apologize as I do have two emails in city server regarding Mr. Patterson's resignation. I have printed them and given them to [Owensboro Assistant City Attorney] Steve Lynn to give to you." The Messenger-Inquirer replied to Ms. Nunley that same day, stating that "the request is directed solely at you. . . . And because you are an elected official appointed by the city to serve on the hospital board as the city's representative, any record you possess regarding Mr. Patterson's resignation we feel should be open." Ms. Nunley replied that day, stating, "per the opinions of the Owensboro Health attorneys any emails other than those emailed to the City regarding that entity are not subject to open records."
The Messenger-Inquirer initiated this appeal, arguing that:
An elected public official like Ms. Nunley, whom the city appointed to represent it on the Owensboro Health board of directors, is a representative of the City and continues to owe fiduciary duties to the City in her capacity as a board member. Records that Ms. Nunley possesses by virtue of her representation of the City on the Owensboro Health board of directors are thus "public records" under KRS 61.870(2).
The Messenger-Inquirer noted that in Owensboro Med. Health Sys. V. Haynes , No. 11-CI-1476 (Daviess Cir. Ct. July 25, 2012), the court held that Owensboro Medical Health System, Inc., the predecessor to Owensboro Health, was not a public agency under KRS 61.870 (overruling 11-ORD-151). 4 The Messenger-Inquirer also stated that "we believe the Daviess Circuit Court was incorrect to hold that Owensboro Medical Health System is not a public agency under the Open Records Act. " However, it argued that "the Messenger-Inquirer expressly reserves the right to pursue the claim that Owensboro Health is a 'public agency' . . . , particularly in light of subsequent events, which include the City's and County's control over the entity's name change and amendments to its bylaws in the fall of 2012."
Ms. Nunley responded to the appeal on June 8, 2016, arguing that:
What the newspaper attempts here is to transform an adjudged private entity into a public one simply because one of its members is appointed by a public agency. If, as the newspaper urges, the appointing agency (and hence the public) is entitled to any records in its appointee/private board member's possession -- or available to that appointed member -- then the public would be entitled to access all records of the private entity at issue. The result of course completely erases all the statute's delineated distinctions as to what is and what is not a public agency subject to the Open Records Act.
Ms. Nunley cited to Ky. Cent. Life Ins. Co. By & Through Stephens v. Park Broad. of Ky. Inc., 913 S.W.2d 330 (Ky. Ct. App. 1996), for the proposition that "Ms. Nunley the Commissioner occupies a legally separate role from that of Ms. Nunley the Owensboro Health board chair, and the latter falls outside the purview of the Open Records Act. " Ms. Nunley also stated that while Owensboro Medical Health System has since changed its name to Owensboro Health, Inc., the bylaws of Owensboro Health have not otherwise changed from that of Owensboro Medical Health System under review in Haynes .
KRS 61.870(2) provides that "'public record' means all . . . documentation . . . prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(1) provides the definition of "public agency. " The Daviess Circuit Court in Haynes has determined that Owensboro Health's corporate predecessor, the Owensboro Medical Health System, was not a public agency under KRS 61.870(1). While Owensboro Medical Health System has since changed its name, its organization and bylaws have not otherwise been altered, and we do not find sufficient reason to deviate from the holding and reasoning of Haynes . Accordingly, Owensboro Health is not a public agency for the purposes of the Open Records Act.
In Kentucky Central , Don. W. Stephens, the Commissioner of the Kentucky Department of Insurance, was appointed as a rehabilitator for Kentucky Central Life Insurance Co. 913 S.W.2d at 331. A reporter submitted an open records request "to the insurance commissioner for information concerning the identities of the corporations and individuals submitting bids for certain assets of Kentucky Central and its subsidiaries." Id. The commissioner denied the request on several grounds, including that "Kentucky Central Insurance Company is not funded by state or local authority and therefore the records are not public." Id. The court concluded that "Stephens, in his capacity as insurance commissioner and in his capacity as court-appointed rehabilitator of Kentucky Central, occupies two separate and legally distinct positions. . . . The information sought was not subject to disclosure as a 'public record' by way of the open records request to the insurance commissioner. " Id. The court reasoned that "the company's records should not lose their private status simply because the rehabilitator has used, possessed, or has access to them." Id. at 335. The Kentucky Central court held that the records of a private company did not lose their status as private records just because a public official had access to them as rehabilitator over the company. See also 15-ORD-106 (discussing Kentucky Central ).
Following Kentucky Central , we similarly find that Owensboro Health does not lose its status as a private entity because one of its directors also serves in a public capacity. While Ms. Nunley was required to produce all documents held in her capacity as a City Commissioner, she did so, and her capacity as a board member of Owensboro Health is legally distinct from her capacity as City Commissioner. Accordingly, in withholding documents held in her capacity as a member of the board of directors of a private entity, Ms. Nunley did not violate the Open Records Act.
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.
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