NOT PUBLISHED 

94-ORD-67

May 24, 1994

IN RE: College Heights Herald/Western Kentucky University;

Hilltopper Athletic Foundation; College Heights

Foundation

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:

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:

It now provides:

A "public record" is defined as:

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:

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:

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.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

jgh/413

Distributed to:

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