Request By:
Mr. Joseph T. Condit, Secretary
Covington First Development Corporation
805 Covington-Kenton County Municipal Building
Third and Court Streets
Covington, Kentucky 41011
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Mr. Mark Neikirk, staff reporter for The Kentucky Post, has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in your custody as secretary of the Covington First Development Corporation (CFDC). Specifically, Mr. Neikirk requested to inspect the
. . . records reflecting who has applied for loans to the agency, who has received loans, what conditions the loans were granted under (term and interest rate), and the amount of the loans.
You denied Mr. Neikirk's request on the basis that the Open Records law applies only to public agencies and, in your opinion, CFDC is not a public agency.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial was proper under the Open Records law.
The Open Records law is only applicable to public agencies as defined by KRS 61.870(1):
"Public agency" means every state or local officer, state department, division, bureau, board, commission and authority; every legislative board, commission, committee and officer; every county and city governing body, council, school district board, special district board, municipal corporation, court or judicial agency, and any board, department, commission, committee, subcommittee, ad hoc committee, council or agency thereof; and any other body which is created by state or local authority in any branch of government or which derives at least twenty-five percent (25%) of its funds from state or local authority.
According to the Articles of Incorporation, CFDC was formed as a "not for profit corporation" pursuant to KRS Chapter 273. The purpose of CFDC is community development through making loans to small businesses. As such, CFDC is not a public agency.
Mr. Neikirk argues that CFDC is a public agency because it is "created by state or local authority . . . or . . . derives at least twenty-five percent (25%) of its funds from state or local authority. " KRS 61.870(1). Your denial letter and the Articles of Incorporation sufficiently indicate that these assertions are misplaced. Even though the City of Covington designated the initial members of CFDC, the City did not create CFDC. The Articles of Incorporation do not state that the incorporators were acting in their official capacities as mayor and city manager during the creation of CFDC. Additionally, you indicate that CFDC receives no funds from the City of Covington. The city employees who staff CFDC do not receive remuneration for their services. CFDC appears to be funded through the sale of federal bonds which serves as the loan financing.
It is therefore the opinion of the Attorney General that CFDC is not a public agency and not subject to the Open Records law.
Mr. Neikirk has additionally inquired as to whether CFDC is a public agency subject to the Open Meetings law. Pursuant to KRS 61.805, CFDC does not appear to be defined as such under the Open Meetings law. See OAG 84-186, 82-1, 81-238, 75-402.
As directed by statute, a copy of this opinion is being sent to the requestor who may initiate further proceedings pursuant to KRS 61.880(5).