Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; JAMES M. RINGO, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General from the Kentucky Utilities Company's response to Mr. Jim Shaw's open records request to inspect records that pertain to dates of electrical service being provided to Kentucky Utility customers.
For the reasons which follow, it is the conclusion of this office that the Kentucky Utilities Company is not a "public agency" as defined by KRS 61.870(1) and its records are exempt from public inspection under the Open Records Act.
KRS 61.870(1) defines "public agency" as follows:
(1) "Public agency" means:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) 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;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j) or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]
Mr. Roger R. Cowden responded, on behalf of Kentucky Utilities Company, to Mr. Edwards's request, stating:
In response to your letter of August 8, 1995, and as a follow-up to my phone conversation with you yesterday, be advised that Kentucky Utilities Company cannot voluntarily provide you the information you requested. The customer records you wish to inspect are proprietary to Kentucky Utilities Company and its customers, and unless this request is accompanied by a valid court order or subpoena, or unless you can cite any legal authority for releasing this information, KU must deny the request. The "Open Records Act" which you cite in your letter, in my opinion, is not applicable to Kentucky Utilities Company, an investor-owned utility.
In order to obtain additional information and documentation relating to this appeal, and as authorized by KRS 61.880(2) and 40 KAR 1:030, the undersigned contacted Mr. Cowden by telephone to determine whether Kentucky Utilities fell within the definition of a "public agency" , as defined in KRS 61.870(1). Mr. Cowden stated that KU was a private investor-owned utility company. Moreover, he confirmed that the company did not derive at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds.
In this open records appeal, we are asked to determine whether the Open Records Act applies to the Kentucky Utilities Company. For the reason which follows, we conclude that it does not. As an "investor-owned" utility company which does not derive at least twenty-five (25%) of its funds expended by it in the state from state or local funds, Kentucky Utilities does not fall within the definition of a "public agency" to which the Open Records Act applies. Accordingly, it is not required to release its records, or to adhere to KRS 61.880(1) in responding to requests for records. 93-ORD-127.
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.