24-ORD-166
July 22, 2024
In re: Makeda Charles/The Courier-Journal
Summary: The Office cannot find that the Courier-Journal (“the
Newspaper”) 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 June 11, 2024, Makeda Charles1 (“Appellant”) submitted a request to the
Newspaper for recordings and transcripts of voicemail messages she left on the
Newspaper’s phone line. On June 27, 2024, having received no response from the
Newspaper, 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 Newspaper 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).
1
The Office takes notice of its decision in 24-ORD-135 involving another appeal initiated by the
Appellant. Based on the record developed in that appeal, the Office found that the Louisville Regional
Airport Authority did not violate the Act when it denied a request for records because the Appellant
is not a resident of the Commonwealth. The Act only gives a “resident of the Commonwealth” the
statutory right to demand access to public records. KRS 61.872(2)(a). It does not, however, prohibit
nonresidents from obtaining public records. Rather, “[t]he official custodian may require the applicant
to provide a statement in the written application of the manner in which the applicant is a resident of
the Commonwealth under KRS 61.870(10)(a) to (f).” Id. (emphasis added). Here, the Newspaper has
not challenged the Appellant’s status as a “resident of the Commonwealth.” Thus, that issue is not
properly before the Office and its decision in 24-ORD-135 is not dispositive here.A private entity, such as the Newspaper, is only 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 in Kentucky 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 Newspaper is 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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#286
Distributed to:
Makeda Charles
Bonnie Feldkamp