24-ORD-052
March 5, 2024
In re: Jennifer Toribio Naas/Masterson Station Homeowners’ Association
Summary: The Office cannot find that the Masterson Station
Homeowners’ Association (the “Association”) violated the Open Records
Act (“the Act”) because the Office cannot find that it is a “public agency”
subject to the Act.
Open Records Decision
On January 30, 2024, Jennifer Toribio Naas (“Appellant”) submitted a request
to the Association for various types of records. On February 8, 2024, having received
no response from the Association, the Appellant initiated this appeal.
“Each public agency, upon any request for records made under [the Act], shall
determine within five (5) [business] days . . . after the receipt of any such request
whether to comply with the request and shall notify in writing the person making the
request, within the five (5) day period, of its decision.” KRS 61.880(1) (emphasis
added). Here, the Appellant claims the Association violated the Act because it did not
respond to her request in writing or provide her with the requested records. However,
an entity is only subject to the Act if it is a “public agency,” as defined by
KRS 61.870(1). On appeal, the Association admits that it did not respond to the
Appellant’s request because it is a “private Kentucky non-profit, non-stock
corporation” and “not a ‘public agency’ that possesses ‘public records.’”
A private entity, such as the Association, can only become a “public agency”
subject to the Act if it is a “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.” KRS 61.870(1)(h). The requester carries the burden to
make a prima facie case that, in the fiscal year covering the scope of his or her request,
at least 25% of the funds the entity expended were from state or local funds. See, e.g.,23-ORD-070; 21-ORD-173. Here, the Appellant did not attempt to make such a prima
facie case. Thus, the Office cannot find that the Association is a public agency subject
to the Act. See also 15-ORD-145 (concluding that a homeowners’ association is not a
“public agency” subject to the Act).
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
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.
Russell Coleman
Attorney General
/s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#050
Distributed to:
Jennifer Toribio Naas
Zachary G. Cato
Mary Wethington
Lena Campbell