NOT TO BE PUBLISHED
June 29, 1993
IN RE: William "Bill" Donnermeyer/St. Elizabeth Medical Center
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of St. Elizabeth Medical Center, Inc., in responding to Representative William "Bill" Donnermeyer's May 11, 1993, request to inspect the document or documents containing the "names and annual salaries and the amount of total compensation actually paid to each of them in 1991 and 1992 for the 25 highest paid employees . . . ." Representative Donnermeyer submitted his request on May 11, 1993. He indicates that as of the date of his appeal, May 26, 1993, he had received no response to his request.
The issue presented in this appeal is whether St. Elizabeth Medical Center, Inc., is a public agency within the meaning of KRS 61.870(1), and is therefore subject to the Open Records Act. On June 2, 1993, the Attorney General requested additional information from the Medical Center in the form of a response to this question. Based on its response, we conclude that St. Elizabeth Medical Center 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[.]
If an agency falls within this definition, it is subject to the Open Records Act, and is required to comply with the law by responding to requests for records within three working days. We therefore asked the Medical Center's C.E.O., Mr. Joseph
Gross, to explain by what mechanism the Medical Center was created, and from whence it derives its funds.
In a response dated June 9, 1993, Mr. John C. LaVelle, attorney for St. Elizabeth Medical Center, explained that it is not a public agency, but is instead a private, not for profit corporation organized under the provisions of Chapter 273 of the Kentucky Revised Statutes. Continuing, he observed:
The only provision contained in KRS 61.870(1) which could result in the Medical Center being a public agency is found in subsection (h) which provides that a public agency is 'any body which derives at least 25% of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds.' Attached is the affidavit of the Medical Center's chief financial officer stating that the only state or local authority funds received by the Medical Center are from the Medicaid program and a grant from the University of Kentucky. His affidavit sets forth the total amount of funds expended in Kentucky by the Medical Center during 1992 and the amount and percentage of state or local authority funds received in 1992, which is well below the 25% required for the Medical Center to be a public agency.
That affidavit, submitted by Mr. W. Michael Arthur, indicates that the Medical Center's expenditures in the Commonwealth of Kentucky during the fiscal year ending December 31, 1992, totaled $151,256,000. Of this amount, $18,198,000 was arguably derived from state or local authority in the form of Medicaid funds and a University of Kentucky grant. This figure is equivalent to 12% of the funds expended by the Medical Center in the Commonwealth of Kentucky during fiscal year 1992. Mr. LaVelle therefore concluded that St. Elizabeth Medical Center is not subject to the Open Records Act.
This Office has consistently recognized that a private corporation comes within the purview of the Open Records Act only if it derives at least 25% of its funds from state or
local authority. OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114. Where evidence is introduced that an agency receives at least 25% of its funds from state or local authority, the Attorney General has deemed it a "public agency." OAG 88-72; OAG 89-46.
Mr. LaVelle indicates that St. Elizabeth Medical Center was not created by state or local authority, nor does it receive funding from state or local authority. He acknowledges that the Medical Center receives Medicaid funds and is the recipient of a University of Kentucky grant, but states that these funds do not constitute 25% of the total funds it expends in the Commonwealth. We therefore conclude that the Medical Center is not a "public agency" within the meaning of KRS 61.870(1), and is not subject to the Open Records Act. Accordingly, it is not required to release its records, or to adhere to KRS 61.880(1) in responding to requests for records.
Representative Donnermeyer may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. William "Bill" Donnermeyer
State Representative - 68th District
333 Bonnie Leslie Avenue
Bellevue, KY 41073
Mr. Joseph Gross, C.E.O.
St. Elizabeth Medical Center
1 Medical Village Drive
Edgewood, KY 41017
Hon. John C. LaVelle
Deters, Benzinger & LaVelle, P.S.C.
Thomas More Park
2701 Turkeyfoot Road
Covington, KY 41017