Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Knox Partners, Inc., is a public agency for open records purposes and therefore violated the Open Records Act by failing to respond to John I. Sizemore's February 25 and June 9, 2005, requests to inspect financial and operational records of that entity. 1 For the reasons that follow, and based upon the authorities cited, we find that Knox Partners, Inc., is a public agency within the meaning of KRS 61.870(1) and that it therefore violated the Act in the disposition of Mr. Sizemore's requests.
On two occasions in the period between February and June 2005, Mr. Sizemore submitted open records requests to Knox Partners, Inc., identifying each as a request arising under the Act and agreeing to pay reasonable reproduction charges not to exceed ten cents per page for copies of records produced in response to his requests. Mr. Sizemore's requests apparently went unanswered prompting him to initiate an open records appeal to this office. On appeal, he asserted:
KCEOC [Kentucky Communities Economic Opportunity Council, Inc., is administering . . . federal grant money to the group. The City of Barbourville has also spent tax dollars to purchase property for the Group's project, "The Wellness Center," and our City owned Water & Electric Company spent money drilling a gas well for the project.
It was Mr. Sizemore's position that by virtue of its receipt of federal and state funding, and the participation of certain elected officials, Knox Partners, Inc., is a public agency for open records and open meetings purposes.
In correspondence directed to this office following commencement of Mr. Sizemore's appeal, Edward de Rosset, registered agent for Knox Partners, Inc., responded to Mr. Sizemore's allegations. In pertinent part, Mr. de Rosset advised:
Knox Partners, Inc., was created as a private corporation to provide the community with a collaborative apolitical environment for discussion and project development. The concept for this corporation was formed in late 1999 and application was made to register as Knox Partners, Inc. Knox Partners, Inc., received official recognition from State of Kentucky on 12/28/2000, with ID# 0507724. Knox Partners, Inc., received a letter from the IRS dated April 29, 2005, granting tax exempt status. The structure of Knox Partners, Inc., called for an Executive Director at such time that funds are available for such a position and that there is project activity sufficient to justify such a position. To date, of course, there have been no funds available.
Noting that Knox Partners, Inc., whose "central project of interest . . . was that of creating a wellness center for the Barbourville Community," has conducted "few meetings this past year and just one meeting since receiving IRS tax exempt status, " Mr. de Rosset continued:
Knox Partners, Inc., has always been seen and understood to be a private corporation that may have future usefulness as an applicant, recipient, conduit, and planner for community projects. However, Knox Partners, Inc., has yet to receive or manage its first dollar and has never had a bank account of any kind. It has also been our clear understanding that Knox Partners, Inc., as a private corporation, is not subject to open meetings and open records regulations. We have been given to understand that Knox Partners, Inc., may in the future be subject to such regulations if it is successful in receiving large grants from the State of Kentucky and/or the federal government.
With reference to supplemental materials Mr. Sizemore submitted to this office, reflecting the purchase of a tract of land and the drilling of a gas well for the wellness center, Mr. de Rosset concluded:
Knox Partners, Inc. has no ownership or right of decision over these acquisitions or explorations. The City of Barbourville operates its own utilities. Drilling a gas well is a new utilities frontier for Barbourville City Utilities. The well was drilled on city property given over to the city by the Corps of Engineers. The reference to purchase of property is unspecific but I'm confident relates to nearly eight acres on Barner Lane in Barbourville. This land was purchased as one of the last acts of Mayor James Thompson in December 2000 shortly before his death. It is wholly city property and at the full discretion of the City of Barbourville as to what its assigned use is to be.
On these bases, Knox Partners, Inc. disputed Mr. Sizemore's allegations that it is a public agency for open records purposes.
Respectfully, we disagree. Article III of Knox Partners, Inc.'s Articles of Incorporation, a copy of which Mr. Sizemore furnished this office states:
The corporation is organized:
1. To be a cooperative effort among the City of Barbourville, Union College, and Kentucky Communities Economic Opportunity Council, Inc., (KCEOC) to establish, operate, and maintain projects, services, and facilities undertaken by the corporation for the benefit of the residents of Knox County in support of tourism, education, recreation, and wellness activities.
As a municipal corporation, the City of Barbourville is a "public agency" within the meaning of KRS 61.870(1)(d), defining that term as "[e]very county and city governing body, council, school district board, special district board, and municipal corporation." (Emphasis added.) As a local government agency created by or pursuant to state statute, Kentucky Communities Economic Opportunity Council, Inc., (KCEOC), is a "public agency" within the meaning of KRS 61.870(1)(f), defining that term as "[e]very state or local government agency . . . created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act." 2
As a "cooperative effort" between two public agencies, namely, the City of Barbourville and KCEOC, Knox Partners, Inc., falls within the parameters of KRS 61.870(1)(k), defining the term "public agency" as "[a]ny interagency body of two or more public agencies where each public agency is defined in [KRS 61.870(1)(a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) . . . ." Our analysis need not proceed any further. Knox Partners, Inc., is a public agency for open records purposes by virtue of KRS 61.870(1)(k), and a public agency for open meetings purposes by virtue of KRS 61.805(2)(h). 3 The fact that the third participant in this "cooperative effort," Union College, is not a public agency within the meaning and scope of the Open Records and Open Meetings Acts does not alter our conclusion. Knox Partners, Inc. must comply in all respects with these laws. Its failure to respond to Mr. Sizemore's open records request therefore constituted a violation of KRS 61.880(1). 4 Although, as noted, the issue of its past noncompliance with the Open Meetings Act is not properly before us, we encourage Knox Partners, Inc., to review the Act to insure future compliance.
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.
Distributed to:
John I. Sizemore103 Miracle DriveBarbourville, KY 40906
President Ed de RossetUnion College310 College StreetBarbourville, KY 40906-1499
Footnotes
Footnotes
1 Mr. Sizemore's appeal also raises the issue of Knox Partners, Inc.'s, status as a public agency for open meetings purposes. Although that issue is not technically ripe for review, Mr. Sizemore having failed to comply with the procedural requirements for initiating such an appeal set forth at KRS 61.846(1) and (2), we will briefly address it in the course of our analysis.
2 KCEOC's website, a copy of which is attached, identifies KCEOC as a community action agency. KRS 273.405, et seq., mandates the creation of community action agencies through the state. KCEOC owes its existence to this statute and is therefore a public agency within the meaning of KRS 61.870(1)(f). Accord, OAG 78-828 (enclosed).
3 KRS 61.805(2)(h) contains the definition of the term "public agency" in relation to the Open Meetings Act, and essentially tracks the language of KRS 61.870(1)(k). "Public agency" is defined as "[a]ny interagency body of two or more public agencies where each "public agency is defined in [KRS 61.805(2)(a), (b), (c), (d), (e), (f), or (g) . . . ."]
4 KRS 61.880(1) establishes procedural guidelines for agency response to open records requests. It provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.