23-ORD-070
March 27, 2023
In re: Jeffrey Jobe/Boys and Girls Club of Glasgow
Summary: In the absence of evidence to the contrary, the Boys and
Girls Club of Glasgow (“the Club”) is a “public agency” subject to the
Open Records Act (“the Act”) under KRS 61.870(1)(h) for fiscal year
2023. Accordingly, it violated the Act when it failed to respond to two
requests to inspect records within five business days of receiving them.
However, the Office cannot resolve the factual dispute of whether the
requested records are “public records” under KRS 61.870(2).
Open Records Decision
On November 16, 2022, Jeffrey Jobe (“the Appellant”) submitted to the Club a
request to inspect various records. On December 15, 2022, the Club responded and
provided some records responsive to the request. However, it denied the Appellant’s
request for “[a]ny communication between members of the board, employees or those
associated with friends of the board specifically referenced by” two individuals
because the “request [was] not sufficiently clear as to allow a meaningful response.”
The Club also stated that “much (if not all) of what [the Appellant] may be seeking
would be exempt from inspection” under KRS 61.878(1)(i) and (r) “as correspondence
with private individuals [or] communications of a purely personal nature.”
The Club also denied the Appellant’s request for it to “identify” the donors who
contributed $800,000 to construct a kitchen for the Club because the request was an
“interrogator[y]” and not a request to inspect public records. Finally, the Club denied
the Appellant’s request for a copy of invoices for legal services billed in 2022 because
it claimed such records were exempt under the attorney-client privilege and attorney
work product doctrine.On January 13, 2023, the Appellant responded and objected to the Club’s
partial denial. First, he claimed his initial request for communications between the
Club’s board members and two individuals precisely described records sought.
Nevertheless, he revised his request and clarified that he sought “communications
between members of the Board . . . concerning the contract dispute with the Housing
Authority.” He stated these communications were not of a “purely personal nature”
because they involved “the business of the organization.” With respect to his request
to “identify” the donors who donated $800,000 to construct a kitchen, he revised it to
include “all records concerning the $800,000 [in] donations that [was] repeatedly
referenced.” He also disputed the Club’s claim that legal invoices are protected by the
attorney-client privilege or attorney work product doctrine. Finally, the Appellant
made a “new request” for a copy of an invoice detailing a $5,000 payment to a specific
person in December 2021 regarding a “Christmas shopping fund” that was referenced
in documents the Club provided in response to his original request.
On January 20, 2023, the Club’s attorney responded to the Appellant’s
subsequent request and confirmed receiving it on January 13, 2023. However, the
Club’s attorney advised he was “out of the office” and would be returning on January
23, 2023. The Club’s attorney stated he would review the Appellant’s “correspondence
in further detail at that time and will be responding accordingly.” Having received no
further communication from the Club, the Appellant initiated this appeal on
February 27, 2023.
As an initial matter, the Office must determine whether the Club is a “public
agency” subject to the Act. The Club is a private, nonprofit organization. A private
organization, however, is considered to be a “public agency” for purposes of the Act if
“within any fiscal year, [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.” KRS 61.870(1)(h). The Appellant claims the Club meets the 25% threshold,
and provides as proof a news article reporting a $1 million donation to the Club from
the Commonwealth’s Capital Project Fund on November 22, 2022. In its response to
his request, the Club stated it “reserve[d] the right to contest” whether it was a public
agency under KRS 61.870(1)(h), but “in the interests of transparency and
cooperation” it would nevertheless respond to his request. On appeal, the Club does
not argue it is not subject to the Act, or provide any evidence to suggest the $1 million
it received from state funds constitutes less than 25% of the funds it has expended,
or may expend, in fiscal year 2023.1 In the absence of evidence to the contrary, the
1
The Commonwealth’s fiscal year begins on July 1 and ends on June 30 of the following calendar
year. See Ky. Const. § 169. Accordingly, July 1, 2022 marked the beginning of fiscal year 2023. The
Commonwealth’s donation was made on November 22, 2022, and therefore, the record contains
evidence that the Club may be considered a “public agency” in fiscal year 2023. But there is no evidence
in the record that, under KRS 61.870(1)(h), the Club was a “public agency” in prior fiscal years.Office concludes the Club qualifies as a “public agency” under KRS 61.870(1)(h) for
fiscal year 2023.2
When a “public agency” receives a request under the Act, it must determine
within five business days whether to grant or deny it and notify the requester of its
decision. KRS 61.880(1). If the public agency denies any portion of the request, it
must also cite the exemption authorizing the denial and briefly explain how it applies
to records withheld. Id. Or, if the records are “in active use, in storage or not otherwise
available,” the public agency may delay access to the records if it gives the requester
“a detailed explanation of the cause . . . for further delay and the place, time, and
earliest date on which the public record[s] will be available for inspection.”
KRS 61.872(5). Here, the Club received the Appellant’s first request on November 16,
2022, but did not respond to it until December 15, 2022, well beyond the statutory
deadline of five business days. Moreover, the Club received the Appellant’s “revised”
and “new” requests on January 13, but did not determine within five business days
whether to grant them, deny them, or invoke KRS 61.872(5) to delay the Appellant’s
inspection of the requested records. Accordingly, the Club violated the Act twice when
it failed to respond timely to the Appellant’s requests.
Although
the
Club
may
be
considered
a
“public
agency”
under
KRS 61.870(1)(h) for fiscal year 2023, and is therefore subject to the Act’s procedural
requirements during this fiscal year, not all of its records are “public records” subject
to inspection. KRS 61.870(2) broadly defines “public records,” but it excludes from
that definition “any records owned or maintained by or for a body referred to in
[KRS 61.870(1)(h)] that are not related to functions, activities, programs, or
operations funded by state or local authority.” Thus, the Club’s records that relate to
its activities funded by the Commonwealth’s $1 million expenditure, or pursuant to
other expenditures of state or local funds, are “public records” under KRS 61.870(2).
The rest of its records are not “public records,” and therefore, are not subject to
inspection. See KRS 61.872(1) (granting Kentucky residents the right to inspect
“public records”).
Because it is a “public agency,” the Club carries the burden of sustaining its
action. KRS 61.880(2)(c). But from the face of the Appellant’s request and supporting
evidence, it does not appear he requested records “related to [the Club’s] functions,
2
Because a private entity does not become a “public agency” under KRS 61.870(1)(h) until it receives
state or local funds amounting to more than 25% of its expenditures “within any fiscal year,” a
determination that a private entity meets the threshold in one fiscal year does not mean that it meets
the threshold in another fiscal year. See, e.g., 09-ORD-192 (finding a private entity was a “public
agency” under KRS 61.870(1)(h) in fiscal year 2008, but not in fiscal year 2009 when only 20.57% of
its expenditures in fiscal year 2009 were attributable to state funds). The evidence presented here only
supports a conclusion that the Club qualifies as a “public agency” under KRS 61.870(1)(h) in fiscal
year 2023. The Office makes no finding as to whether the Club qualified as a public agency in any
other fiscal year.activities, programs, or operations funded by state or local authority.” KRS 61.870(2).
First, the Commonwealth made the expenditure after his initial request on November
16, 2022, and thus, records relating to the Club’s “functions, activities, programs, or
operations funded by” that donation likely would not have been created until after
the expenditure was made. According to the article the Appellant provides, the
Commonwealth’s $1 million expenditure was made to “fund two major projects. Those
include ongoing construction of a satellite club location in Cave City and
transportation needs.”3 Thus, it appears this state expenditure is not connected with
the Club’s construction of a kitchen or the $800,000 allegedly donated to it for that
purpose. It is not clear from this record whether any of the $800,000 in donations for
a kitchen came from state or local funds. If, however, a portion of the $800,000 did
come from state or local funds, then records documenting the expenses to construct
the kitchen would be public records subject to inspection.4 Simply put, the Office
cannot resolve the factual dispute of whether its construction of a kitchen is related
to the Club’s “functions, activities, programs, or operations funded by state or local
authority.” See, e.g., 22-ORD-274 (noting the Office could not resolve a factual dispute
about whether the cost for a road project fell within the agency’s discretionary
spending limit such that no bids for the project were required under the Model
Procurement Code).
The Appellant also claims the Club receives “free rent” from the “Housing
Authority,” and this in-kind contribution should be considered with respect to his
request for communications related to the Club’s contract dispute with the Housing
Authority. However, a private entity is considered a “public agency” under
KRS 61.870(1)(h) when 25% of the funds it expends in any fiscal year comes from
state or local funds. This Office has previously found that in-kind contributions made
by state or local agencies to private entities are not “funds” within the meaning of
KRS 61.870(1)(h). See, e.g., 13-ORD-105. There is no evidence in this record that the
Club expended state or local “funds” in connection with its dispute with the Housing
Authority. As such, the Club’s records related to that dispute are not “public records”
under KRS 61.870(2).5
3
Brennan D. Crain, Local Boys and Girls Club Awarded $1M to Further Vision, WCLU RADIO Nov.
22, 2022, available at https://www.wcluradio.com/2022/11/22/local-boys-and-girls-club-awarded-…-
to-further-vision/ (last accessed Mar. 27, 2023).
4
The Appellant also requested records documenting the “donors” of the $800,000, but records
relating to private donations to a private, nonprofit organization are not related to the expenditure of
state or local funds. Only those records documenting donations by state or local authorities, and
records documenting any expenditures to construct the kitchen if such publicly funded donations were
made for that purpose, would be subject to inspection.
5
Presumably, the Appellant is referring to the Housing Authority of Glasgow, a local housing
authority established under KRS 80.020. Such housing authorities are “public agencies” under
KRS 61.870(1)(b). See, e.g., 18-ORD-174 (finding a local housing authority violated the Act by delaying
access to public records).The same is true with respect to the Appellant’s request for legal invoices
generated in 2022. As stated previously, the Club received $1 million in state funds
on November 22, 2022, after the Appellant submitted his initial request for legal
services billed “in 2022.” There is no indication that the Club incurred legal fees as a
result of receiving the state funds, or as a result of its activities related to pursuing
the purpose of those funds, in calendar year 2022, which ended less than 40 days
later. And because there is no evidence the Club expended state or local funds with
respect to its alleged dispute with the Housing Authority, the legal invoices
associated with that dispute, if any exist, also are not “public records” under
KRS 61.870(2).6
Finally, the Club never responded to the Appellant’s “new request” on January
13, 2023, seeking a copy of the invoice paying $5,000 to a specific person in December
2021 “regarding the Christmas shopping fund.” But as noted previously, the only
evidence here to support a finding that the Club is a public agency under
KRS 61.870(1)(h) is the $1 million in state funds received in fiscal year 2023. No
evidence has been presented that the Club qualified as a public agency in fiscal year
2022, which would encompass records created in December 2021. Thus, while the
Office previously explained that the Club’s failure to respond to this request violated
the Act, the Office cannot find that these records are “public records” under
KRS 61.870(2), and therefore, subject to inspection.
In sum, the Club does not contest the Appellant’s claim that it qualifies as a
“public agency” under KRS 61.870(1)(h) in fiscal year 2023. Because it is a “public
agency,” it was required to respond to the Appellant’s requests within five business
days. KRS 61.880(1). The Club failed to do so, twice, and it therefore violated the Act.
But the Appellant has presented no evidence that any of the records he requested
were “related to [the Club’s] functions, activities, programs, or operations funded by
state or local authority.” KRS 61.870(2). As such, the Office cannot determine
whether the requested records are “public records” within the meaning of
KRS 61.870(2). The Office therefore cannot conclude the Club violated the Act when
it denied the Appellant’s request.
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
6
However, to the extent legal fees were incurred as a result of the Club’s activities related to its
expenditure of state or local funds, invoices documenting those legal services would not be exempt in
their entirety as privileged attorney-client communications or attorney work product. See Monin v.
Monin, 156 S.W.3d 309, 318 (Ky. App. 2004) (noting, without deciding, that “the itemization of a legal
services invoice” would not fall within the ambit of the attorney-client privilege or attorney work
product doctrine); see also 97-ORD-066. However, any portion of legal invoices containing descriptions
of the services performed that could shed light on the attorney’s mental impressions, or which contain
actual communications for the purpose of obtaining legal services, could be redacted from the invoices
as privileged communications or attorney work product. See, e.g., 09-ORD-055.the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#096
Distributed to:
Jeffrey Jobe
Christopher Davenport