Opinion
Opinion By: Albert B. Chandler III, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether Hawkins Funeral Home violated the Kentucky Open Records Act in failing to respond to the May 21, 2003, request of Ulysses Davis III, an inmate at the Kentucky State Penitentiary, for information and records relating to the burial of his juvenile son, Jonah M. Davis. As explained below, Hawkins Funeral Home is not a "public agency" as defined by the Act and, therefore, is not subject to its provisions. Thus, Hawkins Funeral Home did not violate the Act in failing to respond to Mr. Davis's request.
Mr. Davis framed his request to Hawkins Funeral Home as follows:
I am requesting [that] copies of the following records [] be sent to me immediately: All pictures that pertain to the preparation of the body of Jonah M. Davis[,] the deceased[,] and any special written instructions as to how it was to be handled. This should also include medical information. I want to have [a] copy of [the] insurance document that [reflects how much was] paid for the FUNERAL. I want to know the total net cost.
Elaborating upon his request, Mr. Davis attached a list to his letter specifying those "items and documents of information" to which he is seeking access:
1. I want to know the name of the individual that worked on the body of my son.
2. I want copies of his notes [relating to] anything odd that he may have noticed while performing the duties of preparing my son's body.
3. I want to know the type of suit that my son was buried in, [the] cost of the clothing, the type and cost of the headstone placed at his grave[s]ite, details on what type of cosmetics [were] used to hide his wounds and the number of wounds [on] the body once it was turn[ed] over to your funeral home for preparation.
4. I want to know if it was a[n] open casket funeral, [and], if not[,] I would like a full explanation as to why not.
5. I want a complete copy of the Wake Records listing [all] of [] the names of individuals that appeared at the wake[.] I also want a full copy of the [] visitation log [listing] all [of] the individuals that were present at the funeral.
According to Mr. Davis, Hawkins Funeral Home did not respond to his initial letter thereby prompting him to send the foregoing request. He enclosed a $ 25.00 money order to cover the expense of copying the requested documents.
On appeal, Mr. Davis contends that someone at Hawkins Funeral Home accepted a telephone call from him on July 29, 2003, and informed him that the funeral home could not grant his request because it could not verify that he is Jonah's father. Arguing that "public business shall not be conducted in secret," Mr. Davis further requests that any money not utilized in granting his request be returned to him immediately.
As we observed in 02-ORD-41, this office has consistently recognized that a private entity does not come within the purview of the Open Records Act unless it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." KRS 61.870(1)(h). 97-ORD-114; 96-ORD-197; 96-ORD-15. 02-ORD-41, p. 1. Rather, the Act applies only to "public agencies. " For purposes of the Open Records Act, "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 committee, 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[.]
KRS 61.870(1).
In 96-ORD-197, we conclusively resolved the precise question presented for review, finding that "[a] private funeral home, although at one time operated by the county coroner, does not fall within the parameters of this definition. Nor are records of the funeral home 'public records' within the meaning of KRS 61.870(2)." Id., p. 1. Accordingly, we concluded that the private funeral home was "not obligated to comply with the provisions of the Open Records Act. " Because this reasoning is equally applicable here, the same result necessarily follows.
A party aggrieved by this decision may appeal it by initiating an 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.
Distributed to:
Ulysses S. G. Davis III, #98847Kentucky State Penitentiary Dorm 5-1B-15P.O. Box 5128Eddyville, Kentucky 42038
John Taylor, DirectorHawkins Funeral Home 632 West Pine StreetLexington, KY 40508