TO BE PUBLISHED
August 16, 1993
IN RE: Jim Paxton/Kentucky Association of Counties
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Kentucky Association of Counties, hereinafter referred to as KACo, in responding to Mr. Bruce Gardner's June 24, 1993, request to inspect certain records in its custody. Those records are identified as:
From each of the KACo-related insurance funds: KAMP, KALF, KARP, COLT, KRT, KACo Unemployment Insurance, KACo-KML Workers Compensation . . . .:
1. The most recent actuarial report, if this is not available, the most recent audit report.
2. Summary information on loans made to, by or between, the funds during the past three years.
3. A list of fund directors and any fees paid to them during the past three years.
4. The amount and identity of any business entity or individual receiving management, sales, service or administrative fees paid by the fund during the past three years. This would include third party administrators or outside consultants.
5. Annual reports for the funds for the past three years.
For KACo itself . . .:
1. A list of all directors and any fees paid to them.
2. The amount and identity of any public official receiving management, consulting, sales, service or administrative fees during the past three years.
Mr. Gardner is the Business Editor for The Paducah Sun, and his request was made under the Open Records Act.
In a letter dated June 28, 1993, Mr. John M. Griggs, Executive Director of KACo, responded to Mr. Gardner's request. Mr. Griggs took the position that the Kentucky Association of Counties, as a nonprofit corporation, is not subject to the Open Records Act. Nevertheless, he expressed his willingness to release the information requested by Mr. Gardner. In attempting to arrange to inspect the records, Mr. Gardner was advised that because KACo is not a public agency for purposes of the Open Records Act, it is not bound by KRS 61.872(5) relating to timely access to public records. He was further advised that the documents might not be available until July 21.
On behalf of Mr. Gardner, Mr. Jim Paxton, Editor of the Paducah Sun, submitted this appeal to the Attorney General pursuant to KRS 61.880(4). He maintains that Mr. Griggs' response represents a subversion of the Open Records Act, short of denial of inspection, and that this appeal must be adjudicated in the same manner that it would have been adjudicated if the records had been denied.
On July 12, 1993, this Office requested additional documentation from KACo to substantiate its position that it is not a public agency. Specifically, we asked for an explanation of KACo's proposed budget for fiscal years 1992 and 1993 with which we were provided in response to an earlier open records appeal. In addition, we asked that Mr. Griggs explain whether all or any portion of membership dues remitted to KACo by KALF, COLT, KARP, and KAMP, among others, consist of state or local authority funds. We afforded Mr. Griggs an opportunity to
present any financial statements, tax returns, or current budget proposals bearing on this issue.
Mr. Phil Williams, an attorney representing KACo, responded to our request on July 16, 1993. Mr. Williams expressed confusion at Mr. Paxton's decision to file an appeal, noting that KACo had agreed to release the requested records on June 28. He enclosed copies of transmittal letters dated June 29 and July 2 evidencing that these records were forwarded to The Paducah Sun. He explained that the information requested "was fairly extensive and not all in the possession of KACo at the time that the request was made."
In response to the substantive questions raised in our July 12 letter, Mr. Williams stated:
As a nonprofit corporation not created by action of any state or local government, the only possible application of the Open Records Act to KACo would fall under KRS 61.870(h)[sic], which defines public agency as any agency which derives at least 25% of its funds from state or local governments. Our office had previously forwarded to [the Attorney General] copies of KACo's budget, which indicated that less than 25% of KACo's anticipated income was derived from county membership dues. [The Attorney General's] letter requested supplemental information concerning a portion of KACo's dues which are paid by certain entities or corporations outlined in the budget. None of these entities are either a state agency or a county government.
(Emphasis added). Mr. Williams offered to supply this Office with current financial information, but noted that there had been "no material changes in tax returns or current budget proposals which shed any additional light on this issue."
Pursuant to KRS 61.880(2), the Attorney General is charged with the duty of reviewing denials of public records under the Open Records Act, if he is requested to do so by the person seeking inspection of those records. As a starting point, however, we must determine if an agency falls within the definition of a "public agency," codified at KRS 61.870(1), and
is therefore subject to the Open Records Act. That statute 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[.]
The issue presented in this appeal is whether the Kentucky Association of Counties is a "public agency" for purposes of the Open Records Act. For the reasons set forth below, we conclude that because it receives at least 25% of its funds from state or local authority, KACo falls within the parameters of KRS 61.870(1)(h). It is therefore subject to KRS 61.872(5), relating to timely access to public records, as well as all other provisions of the Open Records Act.
In 92-ORD-1232, this Office left unresolved the question of KACo's status as a "public agency" for purposes of the Open Records Act. In that decision, this Office held that KALF (Kentucky Association of Counties All Lines Fund), KOLT (Kentucky Association of Counties Leasing Fund), KARP (Kentucky Association of Counties Advance Revenue Program), KAMP (Kentucky Association of Counties Medical Program), and KACo-KLC (the Worker's Compensation pool administered by KACo and the Kentucky League of Cities), were public agencies within the meaning of KRS 61.870(1)(k). That statute defines a public agency as "[a]ny 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 [KRS 61.870(1)][.]" Because each of these entities was created by agreement between participating public agencies under the Interlocal Cooperation Agreement Act, codified at KRS 65.210 et seq., they were "interagency bodies of two or more public agencies." However, we were unable to determine on the facts presented whether KACo itself was a public agency and subject to the Open Records Act.
Mr. Williams indicated that KACo receives slightly less than 19% of its anticipated income from county funds. These funds are remitted to KACo in the form of membership dues. The 1991-1992 budget reflects that some $96,000.00 in county membership dues was remitted to KACo, and that its total income for that year was $470,000.00. For the 1992-93 fiscal year, KACo anticipated $96,000.00 in county membership dues out
of a total income of $507,200.00. This figure, KACo maintained, fell short of the 25% or more funding required by KRS 61.870(1)(h).
Were this the only source of state or local authority funds received by KACo, we would concur with Mr. Williams in his view that it is not a public agency. In our view, however, any membership dues received from KACo-KLC, KALF, COLT, KARP, and KAMP must be treated as state authority funds inasmuch as they have been characterized as public agencies by this Office for purposes of the Open Records Act.
KRS 61.870(1)(h) defines a public agency as "[a]ny body which derives at least twenty-five percent (25%) of its funds . . . from state or local authority funds[.]" The term "state or local authority" is not defined in the statute, nor has it been construed by this Office, but it is commonly understood to mean "a government agency that administers a project," New World Dictionary, 94 (2d ed. 1978), or "a public agency or corporation with administrative powers in a specified field," Webster's II New Riverside University Dictionary, 139 (2d ed. 1988). See also, The American Heritage Dictionary, 142 (2d ed. 1985). KRS 446.080(4) provides that "[a]ll words and phrases shall be construed according to the common and approved usage of language . . . ." Consistent with this rule of law, we believe that the term "authority" must be construed to mean "public agency." Since KACo-KLC, KALF, COLT, KARP, and KAMP have been deemed "public agencies" for purposes of the Open Records Act, we believe that funds derived from these sources must be calculated into the 25% threshold established in KRS 61.870(1)(h).
KACo's 1992-1993 budget discloses that it received $96,000.00 from participating counties in the form of membership dues. It received $43,000.00 in membership dues from KALF, $60,000.00 in membership dues from COLT, $25,000.00 in membership dues from KARP, and $22,000.00 in membership dues from KAMP. These combined funds represent $246,000.00 of KACo's total income of $507,200.00, or slightly more than 48% of its budget. This figure far exceeds the 25% state or local funding threshold of KRS 61.870(1)(h), without taking into account membership dues received from KACo-KLC, which is not clearly identified in the budget, or GS1, Unemployment Insurance, PEBSCO, KACAM, or KRISI. The latter entities were not dealt with in 92-ORD-1232, and have not been deemed "public agencies" within the meaning of KRS 61.870(1). We need not, however, determine their status
for purposes of the present appeal inasmuch as the 25% threshold is met without their contributions.
Because KACo derives at least 25% of its funds expended by it in the Commonwealth from state or local authority funds, it is a "public agency" for purposes of the Open Records Act and is subject to KRS 61.872(5), relating to timely access to public records, as well as the other provisions of the Act.
KACo 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
Mr. John M. Griggs, Executive Director
Kentucky Association of Counties
400 King's Daughters Drive
Frankfort, KY 40601
Mr. Jim Paxton, Editor
The Paducah Sun
408 Kentucky Avenue
P. O. Box 2300
Paducah, KY 42002-2300
Hon. Phil Williams
Williams & Wagoner
One Oxmoor Place
101 Bullitt Lane, Suite 202
Louisville, KY 40222