Request By:
Forrest Roberts
Green River Regional Mental Health/Mental Retardation Board, Inc.
416 West Third Street
P.O. Box 950
Owensboro, Kentucky 42302-0950
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ann M. Sheadel Director, Civil and Environmental Law Division
Maureen Hayden, a staff reporter for The Evansville Press, has appealed your denial of her request to have access to certain records of Green River Regional Mental Health/Mental Retardation Board, Inc. ("Green River").
By letter of January 11, 1990, Ms. Hayden asked to review all incident reports for the last three years concerning residents of the supervised apartment run by Green River Comprehensive Care Center at 1453 Mattingly Drive, Henderson, Kentucky. You denied this request on January 16, 1990, on the bases that: (1) Green River is a private, non-profit corporation that is not subject to the requirements of the Open Records Act; (2) even if Green River were subject to the requirements of the Open Records Act, the incident reports are exempt from inspection pursuant to KRS 61.878(1)(a); and (3) incident reports should not be subject to the Open Records Act because required public disclosure of such reports would have such a chilling effect on the accurate reporting of incidents as to be contrary to public policy.
By letter of January 24, 1990, Ms. Hayden appealed your refusal to allow her to have access to the requested matter. Ms. Hayden alleges that Green River is a public agency subject to the requirements of the Open Records Act because Green River receives the vast majority of its funding from state and federal sources. Ms. Hayden withdrew her request to review the incident reports in question during a telephone conversation with the undersigned, but asked that her request for an opinion regarding whether Green River is a public agency subject to the requirements of the Open Records Act be answered. That question will be addressed in this opinion.
OPINION OF THE ATTORNEY GENERAL
Kentucky's Open Records Act provides that "[a]ll public records shall be open for inspection by any person, except as otherwise provided" in the Act. KRS 61.872(1). "Public records" are documentary materials, as defined in KRS 61.870(2), that are prepared, owned, used, in the possession of, or retained by a public agency. A "public agency" is defined as, among other things, any body that "derives at least twenty-five percent (25%) of its funds from state or local authority. " KRS 61.870(1).
You dispute this definition of "public agency" and argue that basing a determination of whether a body is a "state agency" on the percent of funds derived from state or local authority is inappropriate. We cannot accept your position, however, because the statutory language is clear and unambiguous. The legislature has decided that any body that derives at least twenty-five percent (25%) of its funds from state or local authority will be considered a "public agency" for purposes of the Open Records Act and must comply with the requirements of that Act.
The question that must be answered, then, is whether Green River derives at least twenty-five percent (25%) of its funds from state or local authority. In attempting to answer this question, we reviewed Green River's budget for the fiscal year ending June 30, 1990. From that review, it appears that Green River derives approximately fifty percent (50%) of its funds from state authority. We presented you with that conclusion in writing and asked for your response, and you did not disagree with that conclusion. We must conclude, therefore, that our conclusion is correct and that Green River derives approximately fifty percent (50%) of its funds from state authority.
Accordingly, because Green River derives more than twenty-five percent (25%) of its funds from state authority, it is our opinion that Green River is a "state agency" for purposes of the Open Records Act and must comply with the requirements of that Act.