August 11, 1994
IN RE: Bob Hensley/Headley-Whitney Museum, Inc.
OPEN RECORDS DECISION
This appeal originated in a request for records submitted by Mr. Bob Hensley, a reporter with WTVQ-TV, to the Headley-Whitney Museum, Inc., on July 22, 1994. Mr. Hensley requested access to all current contracts between the Museum and electronic and on-site security companies. On the same date, Mr. James H. Frazier, III, President of the Headley-Whitney Museum, Inc., denied his request. Mr. Frazier explained that the Museum "is a nonprofit corporation formed under the authority of KRS 273.161 to 273.390 and is not subject to the Kentucky Open Records Act, KRS 61.870 to 61.884."
In his letter of appeal to this Office, Mr. Hensley questions these statements. He notes that in recent years "[the Museum has] received a considerable amount of public money from the Lexington-Fayette Urban County Government or from agencies supported by the LFUCG . . . and the state of Kentucky." He expresses the belief that the funds which the Museum derives from state and local authorities may well exceed twenty-five percent of the funds it expends in the Commonwealth, bringing it within the scope of the Open Records Law under KRS 61.870(1)(h).
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 Mr. Frazier to explain by what mechanism the Museum was created, and from what sources it derives its funds.
In response to our request for additional information, Mr. Frazier submitted an affidavit on July 28, 1994. His review of the 1993-94 budget indicates that the Museum's total operating revenue for 1993-94 was $265,787.80. Of this amount, $47,933.98 was derived from state or local authority funds in the form of grants. The 1994-95 budget lists the Museum's income as $273,525.70. Of this amount, $35,552.70 is derived from state or local authority funds in the form of grants. As a nonprofit corporation, formed under Chapter 273 of the Kentucky Revised Statutes, which does not receive at least twenty-five percent of its funds from state or local authorities, the Museum is not, in Mr. Frazier's view, a public agency for purposes of the Open Records Act.
The sole issue presented in this appeal is whether the Headley-Whitney Museum, Inc., is a public agency within the meaning of KRS 61.870(1), and is therefore subject to the Open Records Act. For the reasons set forth below, we conclude that the Museum is not a public agency, and is not subject to the mandatory disclosure provisions of the 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 twenty-five percent of its funds from state or local authority. OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 93-ORD-79; 93-ORD-96; 93-ORD-127; 94-ORD-1. Where evidence is introduced that an agency receives at least twenty-five percent of its funds from state or local authority, the Attorney General has deemed it a public agency. OAG 88-72; OAG 89-46.
Mr. Frazier indicates that the Headley-Whitney Museum, Inc., was incorporated under Chapter 273. He acknowledges that the Museum receives state and local authority funds, but asserts that the total amount received is less than twenty-five percent of its total revenue. In 1993-94, the Museum received approximately eighteen percent of its funds from state and local authority. In 1994-95, it is anticipated that it will receive 13 percent of its total funds from public coffers. In the absence of clear and convincing evidence to the contrary, we must assume the truthfulness of these assertions. We therefore conclude that the Museum 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.
Mr. Hensley may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. Bob Hensley
P. O. Box 5590
Lexington, KY 40555
Hon. James H. Frazier, III
McBrayer, McGinnis, Leslie & Kirkland
163 West Short Street, Suite 300
Lexington, KY 40507-1361