Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE L. BENSENHAVER, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This appeal originated in a request for records submitted by Dick Moore to the Owensboro Museum of Fine Art on February 16, 1996, and again on February 29, 1996. In his February 16 letter, Mr. Moore requested access to:
1. Federal tax return 990 and all attachments for latest fiscal year;
2. Audited financial statement and management letter for latest fiscal year;
3. Minutes and all attachments for all regular and special meetings from January 1, 1994 thru January 31, 1996.
On behalf of the Owensboro Museum of Fine Art, Mary Bryan Hood, the Museum's Director, responded to Mr. Moore's request on February 21, 1996. She advised him that he could inspect Form 990 for the last fiscal year during regular business hours. However, Ms. Hood denied Mr. Moore's request for audited financial statements and minutes of meetings. She stated that the Museum was not created by state or local authority, and is not a public agency within the meaning of KRS 61.878(1) (h). In support of this position, Ms. Hood cited 93-ORD-123, 1 involving the same parties, in which this office held that the Museum was not a public agency for purposes of the Open Records Act.
In his follow-up request, Mr. Moore argued that the Museum received over 50 percent of its funds from state or local authority funds in fiscal years 1994-95 and 1995-96, and that it will again receive over 50 percent of its funds from state or local authority funds in fiscal year 1996-97. Referring to a document entitled "City of Owensboro Application for Funds Program Year 1996-97," submitted by the Museum as a part of its application for funds, and an attachment entitled "Owensboro Museum of Fine Art Operating Budget - Three Year Comparison Summary," Mr. Moore offered numerical evidence to support his claim. (See attachment. ) Based on these figures, Mr. Moore maintained that the Owensboro Museum of Fine Art falls within the statutory definition of "public agency" found at KRS 61.878(1)(h), and that he is therefore entitled to the records requested. The Museum again denied his request relying on the same authorities. This appeal followed.
Responding to this office's Notification of Receipt of Open Records Appeal, on April 18, 1996, Charles Kamuf, who serves on the Museum's Board of Directors and acts as its uncompensated counsel, elaborated on the views expressed by Ms. Hood. Mr. Kamuf explained that since Mr. Moore's unsuccessful attempt to gain access to records of the Museum through the Open Records Act in 1993, the Owensboro Museum of Fine Art Foundation, Inc., has been established. A public foundation with articles of incorporation recorded with the secretary of state, the Foundation receives no public funds, and is not affiliated with any government entity. Continuing, he observed:
All assets of the Museum which were received entirely from private sources, including the Permanent Collection, all contributions from private sources and records relevant to these private revenues have been transferred to the Foundation.
The tax returns and operating budgets which Moore obtained and submitted to your office and upon which he has based this appeal do not reflect the formation of the Foundation. Accordingly, Moore's requests have not specified from which entity he is seeking information.
The Museum continues to receive public funds from city, county and state governments. These funds are expended for facility maintenance, equipment purchase and maintenance, certain portions of office operations and certain portions of payroll, employee insurance and taxes. The records related to the Museum and its receipt and expense of these funds as defined herein are a part of the public record and available to Moore for inspection.
In conclusion, the Museum is now comprised of two separate entities, namely: 1) The Owensboro Museum of Fine Art, Inc., which is the museum operating entity, and 2) The Owensboro Museum of Fine Art Foundation, Inc., which holds and accounts for all private source revenues, not received from any government source. It is the position of the Museum that the Foundation is not subject to the Open Records Act, in that it receives no public funding.
(Emphasis added.) Mr. Kamuf closed with an impassioned appeal for the continuing confidentiality of records reflecting private source revenues, asserting that "the act of opening all records of any institution that is created to protect the priceless treasures and relics of our civilization's history poses infinite and unfathomable problems."
The parties to this appeal seem to be largely in agreement as to the status of the Owensboro Museum of Fine Art under the Open Records Act. Although Ms. Hood originally argued that the Museum is not a "public agency" for purposes of the Act, Mr. Kamuf took a different position in his April 18 letter, acknowledging that since the Museum receives substantial funding from state and local authorities, records relating to receipt and expense of these funds are public records and available for inspection. Lest there be any lingering confusion, we affirmatively declare that the Museum is a "public agency, " as defined at KRS 61.8709(1)(h), 2 insofar as it derives more than 25 percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. 3 Thus, "any records owned or maintained by or for . . . [the Museum] that are . . . related to functions, activities, programs, or operations funded by state or local authority []" are public records, and are subject to inspection unless they fall within one or more of the exemptions codified at KRS 61.878(1) (a) through (l).Further, we believe that Mr. Moore's request is abundantly clear. He does not request records of the Museum Foundation reflecting private source revenues, but instead requests minutes of meetings 4 and financial records of the Museum. To the extent that such records exist, relate to functions, activities, programs, or operations funded by state or local authority, and do not fall within the parameters of any of the statutory exemptions, they must be made available for inspection. We need not decide whether records of the Foundation are accessible under the Act. This question has not been presented to the Attorney General. Nevertheless, we remind the Museum that even in the unlikely event that we were presented with this question in an appeal and, after thorough investigation into its creation and funding, we found that the Museum Foundation was governed by the Open Records Act, the Act provides substantial protection for the privacy of donors. See, e.g., OAG 86-72; 94-ORD-1.The Open Records Act is premised, at least in part, on the notion that where ever public funds go, public interest follows. OAG 76-648; OAG 80-633. Mr. Moore requests documents reflecting expenditures of public funds. These records must be disclosed. 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.
Footnotes
Footnotes
1 Our records indicate that no such open records decision exists. The cited numbers correspond to an open meetings decision issued in 1993. We assume that the Museum meant to cite 93-ORD-127.
2 KRS 61.870(1)(h) defines the term "public agency" as: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;
3 Mr. Kamuf does not contest the accuracy of the figures which appear on "Three Year Comparison Summary." We therefore assume their accuracy.
4 We do not decide whether the Museum is a "public agency" for purposes of the Open Meetings Act, and thus required to maintain minutes per KRS 61.835. KRS 61.846 sets forth specific procedures for enforcement of the Open Meetings Act with which Mr. Moore must comply before this issue can be resolved.