May 24, 1994
IN RE: College Heights Herald/Western Kentucky University;
Hilltopper Athletic Foundation; College Heights
OPEN RECORDS DECISION
This appeal originated in a series of requests for records submitted by Leslie Flynn and Chris Poynter, reporters for The College Heights Herald, to Western Kentucky University, the Hilltopper Athletic Foundation, and the College Heights Foundation, among others, in February and March, 1994. Ms. Flynn and Mr. Poynter requested access to records reflecting the names of individuals who have donated $5,000 or more to the University in the past ten years. They subsequently amended their request, asking for records reflecting the names of individuals or businesses that contributed to an incentive package for the University's basketball coach, Ralph Willard.
The University responded to these requests through its attorney, Ms. Deborah Tomes Wilkins, in a letter dated February 15, 1994. Ms. Wilkins advised the reporters that because the College Heights Foundation and the Hilltopper Athletic Foundation are separate not-for-profit entities which are not affiliated with the University, the University would not address their open records requests relating to the Foundations. Although the University released records relating to contributions it had received in the past ten years, Ms. Wilkins declined the reporters' request for records relating to donations to each of the foundations pursuant to KRS 61.878(1)(a).
On behalf of his client, the Hilltopper Athletic Foundation, Mr. David F. Broderick denied Ms. Flynn and Mr.
Poynter's requests in a letter dated February 8, 1994. He explained that the Foundation is a not-for-profit corporation, and that as such, it is not subject to the Open Records Law. Although the Foundation regularly makes information available on a voluntary basis, Mr. Broderick maintained that release of this information "would take away the benefit that Western receives from all of these contributors toward Coach Willard's contract." He subsequently furnished this Office with a copy of the Foundation's corporate charter, noting that it receives no funds "from any source affiliated with the Commonwealth of Kentucky" but is entirely funded by voluntary contributions.
Based on the written records submitted to this Office by the College Heights Herald, it appears that no response was received from the College Heights Foundation.
On March 28, 1994, Ms. Susan G. Lindsey, an attorney representing The College Heights Herald, requested that this Office review the actions of the University and the foundations relative to Ms. Flynn and Mr. Poynter's requests. Ms. Lindsey argued that both the College Heights Foundation and the Hilltopper Athletic Foundation are public agencies for purposes of the Open Records Act. In support of this position, she cited OAG 81-2, OAG 89-7, OAG 89-92, and OAG 90-60. In addition, she cited two recent Kentucky Supreme Court decisions, Frankfort Publishing Company, Inc. v. Kentucky State University Foundation, Ky., 834 S.W.2d 681 (1992), and University of Kentucky v. Courier Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992). Based on her analysis of the cited opinions and cases, Ms. Lindsey concluded:
[I]t appears both that the foundations, whether or not they are a non-profit corporations [sic], are indeed public agencies since it is my understanding that they are designed to raise money for Western Kentucky University and that the information requested cannot be withheld based on KRS 61.878(1)(a) which appears to relate to personnel records rather than to information which may cause some personal embarrassment. [Citation omitted.]
Ms. Lindsey urged this Office to issue a decision consistent with this view.
As a follow-up to this appeal, and pursuant to KRS 61.880(2), this Office requested additional information from
the College Heights Foundation to substantiate Ms. Wilkins's assertion that it is a separate not-for-profit entity which is not affiliated with the University. In a response dated May 4, 1994, Ms. Wilkins advised us that although her firm represents the University, it does not represent the College Heights Foundation. Nevertheless, she contacted Dr. Dero Downing, President of the Foundation, and Ms. Mary Sample, Executive Secretary and Treasurer, to obtain the information we requested. Among the documents she submitted is a one page affidavit, signed by Ms. Sample, attesting to the fact that the College Heights Foundation is a private corporation which does not derive 25% of the funds it expends from state or local authority funds.
The questions presented in this appeal center generally on the applicability of Open Records Act to the College Heights Foundation and the Hilltopper Athletic Foundation, and specifically on its applicability to records reflecting donations to Western Kentucky University which have been made through the Foundations but are in the custody of the University. For the reasons set forth below, we conclude that the College Heights Foundation and the Hilltopper Athletic Foundation are not public agencies within the meaning of KRS 61.870(1). Although foundation records in the custody of Western Kentucky University are public records, as defined in KRS 61.870(2), we hold that the University properly declined to release those records pursuant to KRS 61.878(1)(a).
KRS 61.870(1) defines the term "public agency." If an entity falls within one or more of the eleven subsections of this definition it is subject to the Open Records Act, and is required to comply with the procedural and substantive requirements of the law. To resolve the threshold issue presented in this appeal, we must determine how the foundations were created, and from what source they derive their funding. Both Mr. Broderick and Ms. Sample assert that the foundations they represent are private, nonprofit corporations organized under Chapter 273 of the Kentucky Revised Statutes, and that neither received state or local funding.
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 the funds expended by it in the Commonwealth 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 such
funds from state or local authority, the Attorney General has deemed it a "public agency." OAG 88-72; OAG 89-46.
As noted, Mr. Broderick and Ms. Sample indicate that the Hilltopper Athletic Foundation and the College Heights Foundation were not created by state or local authority, and that they receive no state or local funding. We therefore conclude that they are not "public agencies" within the meaning of KRS 61.870(1), and are not subject to the Open Records Act. In the absence of evidence to the contrary, we must accept the Foundations' declarations that they are not "public agencies" for purposes of the Act. Ms. Lindsey has produced no such evidence.
We believe that the authorities cited by Ms. Lindsey in support of her position are inapposite. In OAG 81-2, this Office failed to reach the issue of whether the University of Louisville Foundation was a "public agency" as defined in KRS 61.870(1), because "the request for records, and the response thereto, was not made to or by the Foundation." OAG 81-2, p. 2. In OAG 89-7, we dealt with issues unrelated to the status of a private entity under the Open Records Act, concluding that records of private donations to official Kentucky Derby Festivities were not in the custody of a public agency, and were therefore not accessible under the Act. Similarly, in OAG 90-60, we dealt with an issue unrelated to a private entity's status under the Act. There we held that the home addresses of members of a voluntary association affiliated with the University of Kentucky, and which apparently received 25% or more of its funding from the state or local authority funds, were exempt from public inspection pursuant to KRS 61.878(1)(a), but that work addresses of these members must be released.
In OAG 89-92, an opinion more closely on point and yet not dispositive of this appeal, we addressed the question of whether the Kentucky State University Foundation, Inc., was a "public agency" for purposes of the Act. At page one of that opinion we concluded that the Foundation was "a recognized fund-raising 'instrumentality' of Kentucky State University, and thus an 'agency thereof,' within the meaning of KRS 61.870(1)."
OAG 89-92 was issued in 1989. In 1992, the Open Records Act was substantially overhauled, and the definitional section of the Act revised. Whereas KRS 61.870(1) previously provided:
"Public agency" means every state or local officer, state department, division, bureau, board, commission and authority; every legislative board, commission, committee and officer, every county and city governing body, council, school district board, special district board, municipal corporation, court or judiciary agency, and any board department, commission, committee, subcommittee, ad hoc committee, council or agency thereof; and any other body which is created by state or local authority in any branch of government or which derives at least twenty-five (25) percent of its funds from state or local authorities.
It now 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[.]
A "public record" is defined as:
[A]ll books, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. 'Public record' shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority[.]
The 1992 amendment to KRS 61.870(1) was prompted, at least in part, by the legal debate which resulted from conflicting interpretations of that provision, and which culminated in Frankfort Publishing Company, Inc. v. Kentucky State University Foundation, Inc., supra. It was aimed at eliminating any lingering confusion relative to the intended scope of the term "public agency." Thus, the somewhat ambiguous language of the former KRS 61.870(1) has been clarified. Unless it is "established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of [KRS 61.870(1)]," an agency will not be deemed a "public agency" for purposes of the Open Records Act. KRS 61.870(1)(j).
Accordingly, the fact that the Hilltopper Athletic Foundation and the College Heights Foundation are recognized fundraising instrumentalities of Western Kentucky University, standing alone, is not dispositive. Rather, the critical factors are establishment, creation, and control. Based on the records with which we have been provided, we conclude that neither foundation was established or created by the University. Nor does it appear that the University exercises control over them. The foundations cannot, therefore, be properly characterized as public agencies, nor can their records be treated as public records.
Nevertheless, records of these entities which are "prepared, owned, used, in the possession of or retained by . . ." the University, are public records within the meaning of KRS 61.870(2). (Emphasis added.) In OAG 89-7, p. 4, this Office observed:
Lest there be any semantic question here involving "records of private entities or agencies," if records, though regarding private donations and disbursements, are in the possession of or retained by a state agency, they are, in general, subject to inspection. See KR 61.870(2), supra, (public records include those "in possession of or retained by a public agency").
In her February 15, 1994, letter to reporters Flynn and Poynter, Ms. Wilkins acknowledges that records containing information relating to donations made by individuals to the foundations are in the possession of the University. She nevertheless declined to release the records noting that disclosure of the information contained in them would constitute a clearly unwarranted invasion of the donor's personal privacy per KRS 61.878(1)(a).
It is the opinion of this Office that the University's denial of Ms. Flynn and Mr. Poynter's request was consistent with the Open Records Act. In OAG 86-76, we recognized that the desire of many donors for anonymity outweighs the public's interest in disclosure of their identities. At page 5 of that opinion, this Office observed:
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.
We concluded that opinion by holding that although the amount of pledges and contributions must be disclosed, the names of the donors may be withheld. See also, 94-ORD-1 (holding that records relating to pledges and contributions made toward construction of a public facility are public records, but are not open records). These opinions are dispositive of the second question raised by Ms. Lindsey. The University properly denied the College Heights Herald's request for records in its possession relating to donations made by individuals to the University through the foundations.
The College Heights Herald may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. David F. Broderick
Broderick, Thornton & Pierce
921 College Street - Phoenix Place
P. O. Box 1137
Bowling Green, KY 42102-1137
Hon. Deborah Tomes Wilkins
Campbell, Kerrick and Grise
1025 State Street
P. O. Box 9547
Bowling Green, KY 42102-9547
Hon. Susan G. Lindsey
Harned, Anderson & Bachert
324 E. 10th Avenue
P. O. Box 1270
Bowling Green, KY 42102-1270