Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; THOMAS R. EMERSON, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by James T. Wells in connection with his requests to the Dry Ridge Rural Volunteer Fire Department, Inc., for access to various financial documents.
Apparently, after receiving a request from the Dry Ridge Rural Volunteer Fire Department, Inc., for an annual "donation" or "dues," Mr. Wells, in a letter dated April 8, 1996, requested from officers of the fire department access to various financial documents "starting with the financial records immediately following the creation of the committee up to and including the calendar year 1996 to the present." The donation or dues notice implied some kind of a relationship between the fire department and the city as it said in part that the Dry Ridge City Council has reversed its 1994 vote to "disband the Dry Ridge Rural Volunteer Fire Department, Inc." and the committee is still operating as an official organization for the rural people.
In a letter to Mr. Wells, dated April 12, 1996, Howard Brewer, Jr. of the fire department said in part that they were "having difficulty determining upon what basis you presume that the Dry Ridge Rural Volunteer Fire Department, Inc. is subject to the provisions of the Kentucky Open Records Law." He asked that the requesting party advise what portions of the law subject this corporation to the provisions of the Open Records Act.
Mr. Wells responded to the fire department in a letter dated April 15, 1996. In part he cited KRS 61.880(1) providing in part that an agency response denying, in whole or in part, inspection of a record must include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. Mr. Wells renewed his request for access to the financial documents and asked that the fire department respond to his letter.
Mr. Brewer, on behalf of the fire department, answered Mr. Wells in a letter dated April 20, 1996, and denied the request on the basis that the Dry Ridge Rural Volunteer Fire Department, Inc., is not a public agency under KRS 61.870 and thus not subject to the terms and provisions of the Open Records Act.
This office received a letter of appeal from Mr. Wells on April 26, 1996. He said that the fire department receives funds from the city. He referred to the "incorporated group" and the agency which was created by the city in 1982 but has not been accountable to the city since. He requested an opinion as to whether "this group" is subject to the provisions of the Open Records Act.
On May 7, 1996, this office received a letter from Mr. Brewer with numerous attachments most of which have already been referred to in this decision. Mr. Brewer reiterated that the fire department is a private, nonprofit corporation not subject to the provisions of the Open Records Act. Among the attachments were the Articles of Incorporation of the Dry Ridge Rural Volunteer Fire Department, Inc., indicating that this nonprofit corporation was organized in 1986.
William F. Threlkeld, Esq., submitted a letter, received May 13, 1996, stating in part that the fire department is not a public agency because it does not derive 25% of its funds from state or local authorities. KRS 61.870(1)(h). From January 1, 1992 to May 6, 1996, the period of time for which the corporation's financial records were readily available, the corporation expended within the Commonwealth the sum of $ 78,083.26. During that same time it received from the city and county the sum of $ 11,970.00 which is less than 16% of its funds. All of its remaining funds were derived from private donations.
Mr. Threlkeld further stated that none of the five persons constituting the original board of directors were officers, employees, or agents of the city of Dry Ridge and the incorporator was employed as a private attorney who did not represent the city on either a full or part time basis.
The last document examined was from Mr. Wells and it consisted of excerpts of the minutes of council meetings of the city of Dry Ridge from various times in 1983. They indicated that in 1983 the city created a rural fire committee concerning fire protection in the rural area of the county.
This office has a precise and narrow function in connection with the interpretation and application of the Open Records Act. KRS 61.880(2)(a) requires that when a matter has been properly presented to the Attorney General for review, this office shall review the request and the denial and issue a written decision stating whether the agency violated the provisions of the Open Records Act. The Attorney General's responsibility and obligation, normally, is to determine whether a public agency has properly withheld public records from public inspection and whether a request to inspect public records was properly denied under the terms and provisions of KRS 61.870 to KRS 61.884. The threshold issue here, however, is whether the entity, the fire department, is a public agency as the other questions and concerns will be governed by that determination.
Some of the matters involved here are beyond the scope of a decision under the Open Records Act. We do not understand and cannot explain the relationship and involvement between the rural fire committee created by the city in 1983 and the private nonprofit corporation, operating as a fire department, which was created in 1986.
Among the types of fire departments are city fire departments (KRS Chapter 95), county fire departments (KRS 67.083(3)(u)), and fire district fire departments (KRS Chapter 75). All of these would be a public agency as the term is defined in KRS 61.870(1) and thus subject to the terms and provisions of the Open Records Act.
A fourth kind of fire department is a volunteer fire department, sometimes organized as a nonprofit corporation, which is an independent organization, disassociated from the city or county, except insofar as a contractual relationship is concerned. The only way this type of fire department could be considered a public agency is if it derives at least 25% of its funds expended in the state from state or local authority funds. See KRS 61.870(1)(h) and 94-ORD-16, copy enclosed.
Based on the available evidence, the Dry Ridge Rural Volunteer Fire Department, Inc., is not a public agency pursuant to KRS 61.870(1)(h) as it does not derive at least 25% of the funds it expends in the Commonwealth from state or local authority funds. It receives less than 16% of its funds from those sources with the remainder of its income coming from donations. KRS 61.870(1)(h) and its interpretation and applicability are discussed in more detail in 95-ORD-78 and 95-ORD-79, copies of which are enclosed.
It is, therefore, the decision of the Attorney General that the Open Records Act was not violated by the Dry Ridge Rural Volunteer Fire Department, Inc., as that organization is a nonprofit corporation organized by private individuals and not subject to the Act. It is not a public agency and it does not receive at least 25% of its funds expended in the state from state or local authority funds.
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.