July 18, 1997

In re: Lewis D. Caudill/Elkhorn Coal Corporation

Open Records Decision

This matter comes to the Attorney General on appeal from the Elkhorn Coal Corporation's denial of Mr. Lewis D. Caudill's requests to inspect certain deeds, leases, and agreements in the Corporation's records. Subsequent to the Corporation's denials, Mr. Caudill filed an open records appeal with this office.

On June 25, 1997, we sent a "Notification of Receipt of Open Records Appeal" to the Elkhorn Coal Corporation and enclosed a copy of Mr. Caudill's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Penny R. Warren, Esq., Wyatt, Tarrant & Combs, provided this office with a response on behalf of the Corporation. In her response, Ms. Warren indicated that the Corporation was a private corporation and not a "public agency" within the meaning of Kentucky's Open Records Act, KRS 61.870(1). She further stated that the documents sought by Mr. Caudill were not "public records" as defined by KRS 61.870(2).

We are asked to determine whether the Corporation's denials of Mr. Caudill's requests violated the Open Records Act.

This office has consistently recognized that a private corporation does not come within the purview of the Open Records Act unless it derives at least 25 percent of the funds expended by it in the Commonwealth from state or local authority funds. KRS 61.870(1)(h). 95-ORD-79.

The Elkhorn Coal Corporation affirmatively asserts that it is a private corporation and we have no reason to conclude otherwise. No claim is made by Mr. Caudill that the Corporation is other than a private entity nor has any evidence been introduced that the Corporation receives at least 25 percent of its funds expended by it in the Commonwealth from state or local authority funds to qualify it as a "public agency" under KRS 61.870(1)(h). Under these facts, the Corporation does not fall within the definition of a "public agency" to which the Act applies.

Thus, the Elkhorn Coal Corporation is not required to make its records available for public inspection under the Open Records Act and did not violate the Act in refusing Mr. Caudill's requests to inspect its corporate records.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and 61.882. 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 proceeding.

  1. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Lewis D. Caudill

Confidential Investigative Services

133 Oaklawn Drive

Frankfort KY 40601

J. B. Newman

The Elk Horn Coal Corporation

415 South Lake Drive

Prestonsburg KY 41653

Peter E. Rumsey

Senior Vice President

Pen Holdings, Inc.

P.O. Box 2128

Brentwood TN 37027