January 3, 1994

IN RE: Dick Moore/RiverPark Center, Inc.


This appeal originated in a request for records submitted by Mr. Dick Moore to RiverPark Civic Center on February 22, 1993. Those records were identified as:

1. Schedule [of] lease payments to City of Owensboro and balance due;

2. Pledges to RiverPark, names and amounts;

3. Contributions received to date, names and amounts;

4. RiverPark Balance Sheet (current);

5. RiverPark Profit and Loss or Income and Expense [sic] to date from 1992 thru January 31, 1993;

6. Rates OMU charges RiverPark; [and]

7. Income and Expense of Woodwards' [sic].

Mr. Moore's request was made under the Kentucky Open Records Law.

Mr. Jesse T. Mountjoy, Vice Chairman and legal counsel for RiverPark Center, Inc., denied Mr. Moore's request on February 26, 1993, advising him as follows:

RiverPark Center, Inc. (the 'Corporation') is a Kentucky non-profit, tax-exempt corporation operating the RiverPark Center facility and complex under a Lease and Management Agreement with the City of Owensboro (the 'City'). The Corporation is not a 'public agency,' as defined in the Kentucky Open Records Act, KRS Chapter 61.870, et seq. More specifically, the Corporation was not created by a governmental authority. The Corporation does not derive at least 25% of its funds from any governmental authority. The majority of the Corporation's Governing Board is not appointed by a governmental authority or any public agency.

For these reasons, Mr. Mountjoy maintained that RiverPark Center, Inc., the Corporation, is not subject to the Open Records Law.

In a response dated March 1, 1993, Mr. Moore argued that RiverPark Center received at least $16 million from various governmental authorities, including $1.2 million from the City of Owensboro, $4.5 million from the state, and $.5 million from Daviess County. Additionally, he noted that the City "donated over $1,000,000 worth of land" and that Owensboro Municipal Utilities made "in-kind contributions of over $800,000." Mr. Moore resubmitted his request for the records identified in his first letter, but did not receive a response to his request. This appeal followed.

In response to this Office's request for additional information relative to the issues raised in Mr. Moore's appeal, Mr. Mountjoy elaborated on his earlier statements. He explained:

RiverPark Center, Inc. ('RiverPark') (formerly Owensboro Civic Center, Inc.) is a private, non-membership, not-for-profit corporation organized under KRS Chapter 273, and exempt under Internal Revenue Code §501(c)(3) under tax exemption letter dated November 23, 1988. RiverPark is managed and controlled by an approximate 36-member self-perpetuating Board of Directors consisting of interested private citizens.

The City and the Daviess County Fiscal Court each can appoint one member to this Board. However, as you can see, the Board is not in any way controlled by the City or County or any other governmental entity. . . . [T]he Facility has raised over $8.5 million from contributions from private citizens and/or private charitable foundations. While the Facility has received public funds, RiverPark has never received, owned or controlled any such public funds.

The Facility known as the RiverPark Center consists of an almost 1,500 seat performing arts center/auditorium, a black box experimental multi-use theater and auditorium (200 to 300 seats), property and space for the International Bluegrass Music Museum, which is still being developed, Woodward's Cafe and a number of other related facilities and uses. The Facility is owned by the City and is leased to RiverPark under a Lease and Management Agreement. RiverPark has dedicated all of its private monies raised and to be raised (in the form of pledges) to the Facility. RiverPark still is conducting fund raising activities for the Facility's capital and operating needs. A couple of years ago, the City borrowed, through the Kentucky League of Cities, $9.5 million to complete construction of the Facility. RiverPark, as the Lessee and Manager, "stands behind" this bond issue as a guarantor of the indebtedness to complete the Facility. Part of RiverPark's private funds went into a $2 million endowment fund, the principal of which is not supposed to ever be touched and the earnings on which are to cover any operating deficits of the Facility. RiverPark's Lease and Management Agreement with the City requires RiverPark to pay each year, as Lease rentals, an amount equal to the current annual debt service payment on the City's bond obligations.

It is important to note that all public funds have been received, owned and managed by the City and not by RiverPark relative to the Facility. This includes the $4.5 million from the Kentucky Legislature, as well as monies donated to the Facility by Daviess County and the City. During the construction period, RiverPark and its staff assisted the City as effectively a 'construction manager'.

Mr. Mountjoy noted that Mr. Moore has been afforded access to many of the financial records relating to the Facility by the City. RiverPark Center, Inc. is, however, opposed to releasing "information concerning the list of names, addresses of and amounts from all of our many private donors, many of whom (particularly those giving substantial contributions) have made donations upon our assurance that such donations will be confidential."

The question presented in this appeal is whether RiverPark Center (the "Facility") and RiverPark Center, Inc. (the "Corporation"), are public agencies within the meaning of KRS 61.870(1). If so, they are governed by the mandatory disclosure provisions of the Open Records Law. If not, they need not comply with that law. For the reasons set forth below, we conclude that although the Facility is a public agency because it is city-owned and was financed by and through state and local authority, the Corporation is not a public agency because it does not appear to receive any funds from state or local authority. Accordingly, records which relate to the Facility, including the manner in which it was financed and the manner in which it repays its debts, must be made available for inspection by the City of Owensboro. Records which relate to the Corporation, including programming, nonperformance rentals, performance rentals, and income derived from the Waterfront Giftshop and Woodward's Cafe, are excluded from public inspection since the Corporation is not publicly funded or owned.

We believe that a recent opinion of this Office has a direct bearing on this appeal. In OAG 93-78 we held that several of the third party administrators for the public agencies operating under the umbrella of the Kentucky Association of Counties are also public agencies for purposes of the Open Records Law. These third party administrators manage one or more of KACo's public agencies, "provid[ing] financial and other wide ranging administrative services for the [agencies]." OAG 93-78, p. 1. Each is a Kentucky for-profit corporation, and each has a contractual relationship with the agencies, which includes provision for a management fee to be paid out of the public agencies' coffers. At page 3 of that opinion, this Office held that "[a]ny funds which the third party administrators receive from these [agencies] must be treated as 'state or local' authority funds" within the contemplation of KRS 61.870(1)(h).

In three of five cases, we found that the third party administrators could properly be characterized as public agencies, for purposes of the Open Records Law, because they received 25% or more of their funds from state or local authority funds. The remaining third party administrators received less than 25% of their funds from state or local authority funds, and therefore could not be treated as public agencies.

In our view, the facility known as RiverPark Center can be likened to those third party administrators which receive more than 25% of their funds from state or local authority funds, and may therefore be characterized as a public agency within the meaning of KRS 61.870(1)(h). However, because the corporation known as RiverPark Center, Inc. receives no funds from state or local authority funds in the form of management fees or any other compensation, the corporation is not a public agency within the meaning of KRS 61.870(1)(h).

It is undisputed that construction of the Facility was financed in part by contributions from the private sector in the amount of $8.5 million, and in part by a combination of state and local funding. The Commonwealth of Kentucky committed $4.5 million to the project. The City of Owensboro provided the land and prepared the site at a cost of $1.2 million, initially committing $700,000 of its annual federal Community Development allotment to the project, with the remaining $500,000 to be paid out over a five year period. Daviess County contributed $500,000 to the project. In addition, the City borrowed, through the Kentucky League of Cities Pooled Lease Financing Program, $9.5 million to complete construction. These funds are to be repaid over 20 years. Under the Corporation's Lease and Management Agreement with the City of Owensboro, the Corporation is required to pay each year, as lease rentals, "an amount equal to the current annual debt service payment on the City's bond obligations," including

monthly interest payments and twice yearly principle payments. Clearly, the Facility itself is a public agency, owned by the City, in whose custody its records are reposed. These records, unless otherwise exempt, must be made available for inspection.

RiverPark Center, Inc., on the other hand, is a private, nonprofit corporation which is responsible, under this lease agreement, for managing the Facility. This fact, standing alone, does not render it immune from the Open Records Act. See e.g., OAG 84-237 (holding that a not for profit corporation which derives at least 25% of its funds from state or local authority is a public agency as defined in KRS 61.870(1)). However, the Corporation was not created or controlled by governmental authority, but is managed by a 36 member board of directors composed almost entirely of private citizens. Nor does it appear that the Corporation receives any funding from state or local authority funds. [1] Based on the information with which we have been provided, it appears that the Corporation is entirely self-sustaining, generating income through programming, rentals for nonperformance events, rentals for performances, and "other Departmental income." We must rely on Mr. Mountjoy's repeated assurances that the Corporation "has never received, owned or controlled any . . . public funds." Instead, it appears that any funds which are exchanged flow from the Corporation to the City to retire the Facility's debts.

Guided by these observations, we turn to each category of documents requested by Mr. Moore. It is the opinion of this Office that because the documents relate to the Facility, as opposed to the Corporation, the schedule of lease payments and balance due to the City of Owensboro are public records, and may be obtained from the City. Similarly, records reflecting pledges and contributions which were made toward the construction of the Facility must be treated as public records if such records exist in the Facility or the City. Such records are not, however, in our view, open records under the rule announced in OAG 86-76, at least with respect to the names of the donors. In that opinion, we recognized that the desire of many donors for anonymity outweighs the public's interest in

disclosure of their identities. [2] Thus, while the amount of pledges and contributions must be disclosed, the names of the donors may be withheld. Finally, records reflecting the rates charged by Owensboro Municipal Utilities may properly be treated as public records, and should be made available for inspection by OMU or the city unless otherwise excepted from the mandatory disclosure provisions of the Open Records Act.

We do not believe that the Corporation is obligated to release its "balance sheet," "profit and loss" statement, or the "income and expense" statement of Woodward's Cafe. These records do not reflect money expended from public coffers, but relate to the private operation of the Corporation. Since the Corporation is not a public agency for purposes of the Open Records Act, it cannot be compelled to release these records.

We remind the parties of this Office's limitations in resolving open records disputes, which were 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 evidence indicates that RiverPark Center, Inc., is not a public agency within the meaning of KRS 61.870(1). If Mr. Moore 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 RiverPark Center, Inc., in the circuit court, he should not be named as a party in that action, or in any subsequent proceeding.






Distributed to:

Hon. Jesse T. Mountjoy

Vice Chairman & Legal Counsel

Holbrook, Wible, Sullivan & Mountjoy

Attorneys At Law

100 St. Ann Building

P. O. Box 727

Owensboro, KY 42302-0727

Mr. Dick Moore

2116 Griffith Pl. W.

Owensboro, KY 42301


[1]The Facility receives $100,000 per year from city government, but these funds are characterized as a part of the City's pledge toward land costs.

[2]"This may be particularly true in the case of those making or considering the making of large donations since if this becomes known, generally, they may be contacted and pressured by many other organizations seeking donations." OAG 86-76, p. 5.