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 Calvary Baptist Church violated the Kentucky Open Records Act in failing to respond to the request of Randy Joe Whitson for "a copy of the notes/transcript, or tape" of counseling sessions conducted there by Dr. Carol Williams. As explained below, Calvary Baptist is not a "public agency" as that term is defined by the Open Records Act and, therefore, is not subject to its provisions. Because the Open Records Act does not apply to Calvary Baptist, it did not violate the Act in failing to respond to Mr. Whitson's request for the specified records.
In his letter directed to the "Records Custodian" at Calvary Baptist on August 21, 2003, Mr. Whitson sought access to records generated during 1987 "if memory serves" and "any and all information" the church could provide him with. Having received no response to his initial request, Mr. Whitson repeated his request in a letter dated October 6, 2003, "formally requesting" the records described in the attached letter pursuant to KRS Chapter 61 "which covers the Open Records Act. " On appeal, Mr. Whitson requests our assistance in acquiring the requested records since he has not yet received a response to either request.
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). 02-ORD-41, p. 1; 03-ORD-236; 97-ORD-114; 96-ORD-197; 96-ORD-15. Rather, the Act applies only to "public agencies. " For purposes of the Open Records Act, a "public agency" is defined as:
(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 policymaking 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 (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).
A church does not fall within the parameters of this definition. Nor are records of a church "public records" within the meaning of KRS 61.870(2). 1 See 96-ORD-197. Consistent with the foregoing authority, we conclude that Calvary Baptist Church, a private entity, is "not obligated to comply with the provisions of the Open Records Act, " Id., p. 1, which necessarily means that its failure to respond to Mr. Whitson's request does not constitute a violation of the Act.
In light of this determination, we are without authority to require Calvary Baptist to disclose the requested records to Mr. Whitson. Upon receiving notification of this appeal, however, Dr. Williams notified this office of her willingness to release the records to Mr. Whitson upon receipt of the required fee and a signed release form although she is no longer employed by Calvary Baptist. Accordingly, we encourage Mr. Whitson and Dr. Williams to communicate with each other directly so as to resolve this issue in a manner that is satisfactory to both parties.
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.
Footnotes
Footnotes
1 According toKRS 61.870(2):
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority [.]