NOT TO BE PUBLISHED
In re: Lewis D. Caudill/Elkhorn Coal Corporation
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).
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.
James M. Ringo
Assistant Attorney General
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