NOT TO BE PUBLISHED

97-ORD-65

April 15, 1997

In re: Thomas J. Schulz/Kentucky River Community Care, Inc.

Open Records Decision

The question presented in this appeal is whether Kentucky River Community Care, Inc., a non-profit corporation which administers a community mental health and mental retardation services program for an eight county region of eastern Kentucky pursuant to Chapter 210 of the Kentucky Revised Statutes, is a public agency for purposes of the Open Records Act and thus obligated to disclose the annual salaries of its employees. It is the opinion of this office that because it receives at least 25 percent of the funds it expends in Kentucky from state or local authority funds, it is a public agency falling squarely within the parameters of KRS 61.870(1)(h). Resolution of the question whether the annual salaries of its employees are public records, and open to public inspection, turns on whether those salaries are "funded by state or local authority." KRS 61.870(2).

The record reflects that Kentucky River Community Care, Inc., operates under a contract with the Cabinet for Health Services by the terms of which it receives $3,762,464 from the state for various services delineated in section 1.1 of that contract. The corporation receives additional funds from the federal government which are not relevant to our analysis. Section 3.6 of the contract discloses that the corporation’s annual budget is $3,762.464 of which $3,114,200 represents state funds. Mr. Schulz states that in testimony before the National Labor Relations Board, "it was estimated that nearly 80 percent of Kentucky River Community Care, Inc.’s budget comes from state sources." The corporation does not dispute this estimate, which is confirmed by Section 3.6 of the contract.

Based on this record, it is clear that Kentucky River Community Care, Inc., easily exceeds the 25 percent threshold found at KRS 61.870(1)(h). That statute provides that for purposes of the Open Records Act, the term "public agency" means "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." Its records are public records unless they "are not related to functions, activities, programs, or operations funded by state or local authority." KRS 61.870(2). Moreover, the corporation has agreed to comply with the Open Records Act at Section 1.3(b) of its contract with the state. The fact that the National Labor Relations Board has concluded that Kentucky River Community Care, Inc., is not a political subdivision of the state for purposes of unionization, to which the corporation attaches great weight, has no bearing on our analysis.

The remaining question is whether records disclosing the annual salaries of the corporation’s employees are subject to public inspection. It is the opinion of this office that if those salaries are paid out of state funds they are public records which fall within the parameters of KRS 61.870(1)(h) and KRS 61.870(2). "Amounts paid from public coffers are perhaps uniquely of public concern. We believe the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items, or for salaries, etc. Specific sums paid in salary from public monies . . . fall within such purview." OAG 90-30, p. 3. Whatever status the employees of Kentucky River Community Care, Inc., may perceive themselves to hold, it is apparent that if their salaries are paid from public funds the public’s interest in monitoring the expenditure of those funds outweighs the employees’ expectation of privacy. If, on the other hand, those salaries are not paid from public funds, they cannot properly be treated as public records within the scope of KRS 61.870(2), and need not be disclosed. Kentucky River Community Care, Inc., is therefore directed to release salary records consistent with these principles.

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

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#308

Distributed to:

Thomas J. Schulz

Counsel

Kentucky State District Council of Carpenters

632 Comanche Trail

Frankfort KY 40601

Liz Elmlinger

Human Resources Director

Kentucky River Community Carte, Inc.

115 Rockwood Lane

Daniel Boone Parkway

Hazard KY 41701

George J. Miller

Wyatt, Tarrant & Combs

1700 Lexington Financial Center

Lexington KY 40507-1746