December 10, 1993
IN RE: Stephen A. Hill/St. Elizabeth Medical Center-
OPEN RECORDS DECISION
This appeal originated in a request for records submitted by Mr. Stephen A. Hill, a reporter with WCPO-9 News, Cincinnati, to St. Elizabeth Medical Center - Grant County on October 19, 1993. Those records are identified as:
1. Current and past (expired) contracts Grant County Hospital and or St. Elizabeth Medical Center - Grant County have and had with Spectrum Emergency Care; specifically, the contracts that required Spectrum to provide doctors for hospital's emergency room[;]
2. A list of all the doctors who have worked in the hospital's emergency room under the hospital's contract with Spectrum.
In a response dated October 22, 1993, Mr. Mark G. Arnzen, an attorney representing St. Elizabeth Medical Center-Grant County, denied Mr. Hill's request, explaining that the Hospital "is not a 'public agency' under the [Open Records] Act."
In his letter of appeal to this Office, Mr. Hill objects to Mr. Arnzen's response, noting:
In my open records request to the hospital asked [sic] the hospital to cite a specific section of the Kentucky Open Records Act that allows the hospital to withhold the requested material. In his letter, hospital attorney Arnzen only says '. . . the Grant County Hospital is not a "public agency" under the Act.' As a stubborn journalist who frequently doesn't accept no for an answer, his response is simply not good enough.
Mr. Hill indicates that on October 22, 1993, he spoke with Grant County Judge/Executive, Carol Woodyard, who "confirmed [that the Hospital] is a public facility."
The issue presented in this appeal is whether St. Elizabeth Medical Center - Grant County is a public agency for purposes of the Open Records Act. On October 28, 1993, the Attorney General requested additional information from the Hospital in the form of a response to this question. Based on the Hospital's response, and this Office's decision in 93-ORD-79, we conclude the St. Elizabeth Medical Center - Grant County is not a public agency within the meaning of KRS 61.870(1), and is not subject to the Open Records Act.
KRS 61.870(1) provides:
(1) "Public agency" means:
(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 derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds;
(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), (j) or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, 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 (k) 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[.]
Any entity which falls within one of these definitional sections is subject to the Open Records Act, and is required to comply with that law. We therefore asked Mr. Arnzen to explain by what mechanism the Hospital was created, and from what source it derives its funds.
In a response dated November 2, 1993, Ms. Mary K. Molloy, an attorney associated with Mr. Arnzen, explained that since April 1, 1993, Grant County Hospital has been owned and operated by St. Elizabeth Medical Center. She observed:
Grant County Hospital was not and is not owned or operated by state or local government. Furthermore, it appears that Grant County Hospital does not derive more than 25% of the fund expended by it in the Commonwealth from state or local authorities. Specifically, the percentage of funds received from Medicaid has not exceeded 25% . . . . Based upon these
facts, it was determined that Grant CountyHospital was not a 'public agency' under the Open Records Act.
Ms. Molloy notes that in an earlier decision issued by this Office, we ruled that St. Elizabeth Medical Center was not a public agency.
In 93-ORD-79, a copy of which is attached, this Office indeed held that St. Elizabeth Medical Center is not a public agency, within the meaning of KRS 61.870(1), because it does not receive 25% or more of the total funds it expends in the Commonwealth from state or local authority. Because it is owned and operated by St. Elizabeth's, and because it does not receive 25% or more of its funds from state or local authority, we believe that Grant County Hospital is not a public agency and cannot be required to release its records under the Kentucky Open Records Law.
In a conversation with the County Judge/Executive on November 22, 1993, Judge Woodyard stated that although the public utilizes the Hospital's services, it does not receive local funding. Mr. Hill apparently misunderstood her statements to him in their earlier conversation.
We remind the parties of this Office's limitations in resolving open records disputes, which are discussed at page 10 of 93-ORD-90. There we observed:
Given the limited role for the Attorney General contemplated by the statutes and the office's limited resources, the Attorney General cannot truly be a 'judge' in the sense of reviewing volumes of documents, listening to testimony, considering briefs, etc. In the final analysis, the application and meaning of the Open Records Act can only be determined by a court of law.
Here, as in that appeal, the overwhelming weight of the evidence indicates that the Grant County Hospital is not a public agency within the meaning of KRS 61.870(1). If Mr. Hill
can adduce evidence to the contrary, he may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Although the Attorney General should be notified of any action against Grant County Hospital in the circuit court, he should not be named as a party in that action, or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. Stephen A. Hill
500 Central Avenue
Cincinnati, OH 45202
Hon. Mark G. Arnzen
Arnzen, Perry & Wentz, P.S.C.
600 Greenup Street
P. O. Box 472
Covington, KY 41012-0472
Hon. Mary K. Molloy
Arnzen, Parry & Wentz, P.S.C.
600 Greenup Street
P. O. Box 472
Covington, KY 41012-0472