Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Northern Kentucky Bengal Tigers, Inc. violated the Kentucky Open Records Act in denying the request of Evelyn Elaine Snell to receive a copy of various financial and operational records. More specifically, the sole issue presented is whether Bengal Tigers, Inc. is a public agency within the meaning of KRS 61.870(1)(a) through (k). Based upon the limited evidence of record, Bengal Tigers, Inc. appears to be a private, non-profit agency that does not derive twenty-five percent (25%) or more of the funds expended by it in the Commonwealth of Kentucky from state or local authority funds or otherwise qualify as a public agency for purposes of the Open Records Act. Accordingly, Bengal Tigers, Inc. did not violate the Act in denying Ms. Snell's request.
Following a series of written exchanges with Brian Warner, President, beginning in September 2005, Ms. Snell directed a letter to him on March 24, 2006, requesting pursuant to "the Freedom of Information Act, under section[s] KRS 61.870 to KRS 61.884," 1 a copy of the Bengal Tiger, Inc. "bank statements for July 2000 through March 2006; gross receipts of expenses and income, including concessions (food and gate) , player/ cheerleader fees paid, league fees/dues, donations, all [fundraiser] revenue/losses, and novelty item sales and all equipment expenses from 2000 through 2005 seasons." In a timely written response, Mr. Warner acknowledged receipt of Ms. Snell's request, but advised her that "this does not apply to" Bengal Tigers, Inc. According to Mr. Warner, Bengal Tigers, Inc. is "a financially sound and viable part of our community"; Bengal Tigers, Inc. has "worked with the IRS and our accounting firm and submitted all corresponding documents, to ensure that [,] are and forever will stay compliant." In a letter dated April 7, 2006, Ms. Snell appealed the "refusal" of Mr. Warner to allow her "to inspect records in his possession and the accountant's possession." 2
Upon receiving notification of Ms. Snell's appeal from this office, Michael K. Ruberg, attorney, responded on behalf of Bengal Tigers, Inc. According to Mr. Ruberg, Bengal Tigers, Inc. is "not any subsidiary to the State to which [the] Open Records Act would apply." Noticeably absent from Mr. Ruberg's response is any documentation to support this assertion. Unable to conclusively resolve the threshold issue of whether Bengal Tigers, Inc. is a public agency in the relevant sense based upon the limited and conflicting evidence of record, this office requested that Mr. Ruberg provide documentation to substantiate his claim, including the most recent financial statement for Bengal Tigers, Inc., and posed the following question to Mr. Ruberg pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3: 3
. Does the Northern Kentucky Bengal Tigers, Inc. derive twenty-five percent (25%) or more of the funds expended by it in the Commonwealth of Kentucky from state or local funds (including, but not limited to, sources such as the local parks and recreation department, local government, local schools, etc.)?
Likewise, 40 KAR 1:030, Section 3 provides:
Additional documentation. KRS 61.846(2) and 61.880(2) authorize the Attorney General to request additional information from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered.
In response, Mr. Ruberg advises this office that Bengal Tigers, Inc. "does not derive 25% or more of the funds expended by it in the Commonwealth of Kentucky from state or local funds" without further elaboration; attached to his response on behalf of the Bengal Tigers, Inc. is a copy of a letter from Andrew J. Bertke, CPA, MBA, advising Mr. Ruberg that he "examined the books and records of the NKY Bengal Tigers and did not find that at least 25% of total revenues were contributed to this entity by a state or local government. " According to Mr. Bertke, the records of the organization "show that funds are derived from concessions, [players'] fees, admissions, charitable contributions and fundraisers. " 4 Neither Mr. Ruberg nor Mr. Bertke provided the Attorney General with documentation to substantiate this position as requested. 5
Our analysis necessarily begins with the definition of the term "public agency" codified at KRS 61.870(1), pursuant to which:
"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, ordinances, 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[.]
According to the website maintained by the Office of the Kentucky Secretary of State, Northern Kentucky Bengal Tigers, Inc. was incorporated as a "Non-profit" Kentucky Corporation (KCO) on June 20, 1969; 6 the corporation is listed as being in "Good" standing, and the last annual report was filed on April 7, 2006. Brian Warner is listed as President of Northern Kentucky Bengal Tigers, Inc., while Gayle L. Warner Hodge is the registered agent. 7 In other words, sufficient indicia exist upon which to base a determination that Bengal Tigers, Inc. is a private agency. However, the analysis does not end there.
Citing KRS 61.870(1)(h), the Attorney General has consistently recognized that "a private agency does not come within the purview of the Open Records Act unless it derives at least twenty-five percent of the funds expended by it in the Commonwealth from state or local authority funds." 97-ORD-114, p. 1; 95-ORD-79. Although the paucity of evidence presented precludes us from conclusively establishing that Bengal Tigers, Inc. does not fall within the parameters of this provision, Bengal Tigers, Inc. has twice asserted that it does not derive 25% or more of the funds expended by it in the Commonwealth from state or local funds. On appeal, Ms. Snell does not dispute that Bengal Tigers, Inc. is a private agency, arguing instead that Mr. Warner has not complied with the Open Records Act, and disagreeing with his characterization of Bengal Tigers, Inc. as "financially sound. "
In OAG 88-64, this office observed:
Given the limited role [of] the Attorney General contemplated by the statutes and the office's limited resources, the Attorney General cannot truly be a "judge" in the sense of reviewing volumes of documents, listening to testimony, considering briefs, etc. In the final analysis, the application and meaning of the Open Records Act can only be determined by a court of law.
Id., p. 1. As is so often the case, this appeal presents factual issues which this office is simply not equipped to resolve. However, the weight of the evidence does not support the proposition that Bengal Tigers, Inc. is a "public agency" within the meaning of KRS 61.870(1). Accordingly, Bengal Tigers, Inc. cannot be said to have violated the Act in refusing to honor Ms. Snell's request.
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 Although Ms. Snell filed her request under the "Freedom of Information Act, " the state counterpart, commonly known as the Kentucky Open Records Act, is codified at KRS 61.870 to KRS 61.884. In Ferguson v. Alabama Criminal Justice Information Center, 962 F.Supp. 1446, 1447 (M.D. Ala. 1997), the United States District Court conclusively resolved this threshold issue, holding that neither 5 U.S.C. § 552, the Freedom of Information Act, nor 5 U.S.C. § 552(a), the Privacy Act, apply to state agencies. Accordingly, our analysis focuses exclusively upon whether Bengal Tigers, Inc. complied with the Open Records Act in responding to Ms. Snell's request.
2 Attached to Ms. Snell's letter, along with copies of the correspondence that culminated in this appeal, is a copy of the Annual Report filed with the Secretary of State "showing who the 'president' actually should be." According to Ms. Snell, the team was "told that Brian Warner has been 'put in charge' of the [team's] records, reports and funds. This is why all correspondence [] has been directed to him." However, "Mrs. Warner-Hodge has also been included and made aware at the same time as Brian" but has not replied to any of the requests submitted by Ms. Snell either.
3 KRS 61.880(2)(c):
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation.
4 In her letter of appeal, Ms. Snell notes that Bengal Tigers, Inc. "generates nearly $ 30,000/per annum just from Player fees ($ 11,220), Cheerleader fees ($ 13,557.50) and Bingo Earnings ($ 10, 600)"; not included in this total are "gate and food concessions, novelty item concessions, raffles for winning football signed by Cincinnati Bengal[s'] Players, dances, car washes, scratch-off ticket fundraiser and private donations to this team. " While Ms. Snell and the other parents are certainly justified in requesting an explanation of how this money is spent, none of the above is properly characterized as state or local authority funds.
In addition, the "Form 990-PF" that Ms. Snell originally requested from the Department of the Treasury, Internal Revenue Service, on December 2, 2005, is entitled "Return of Private Foundation or Section 4947(a)(1) Nonexempt Charitable Trust Treated as a Private Foundation," the filing of which is governed by KRS 367.657 (reporting requirements for charitable organizations), in the Commonwealth. When viewed in conjunction, these factors support rather than refute the position of Bengal Tigers, Inc.
5 Such reluctance to elaborate detracts from the credibility of their argument.
6 Standing alone, this status is not determinative. However, the fact Bengal Tigers, Inc. is a non-profit organization weighs in favor of our position when viewed in context.
7 In a letter directed to Ms. Snell on December 7, 2005, Mr. Warner advised Ms. Snell that all of the requested records were currently in the custody of the Bengal Tigers, Inc. accounting firm. As further observed by Mr. Warner, Bengal Tigers, Inc. has "never filed organizational returns" because the officers "believed that our organization was encompassed under the Northern Kentucky Youth Football League." In most instances, the officers were correct. However, the Bengal Tigers, Inc. has "been advised to file individual returns on a yearly basis"; the organization has agreed and is now in the process "of making this happen." Said returns "will be reviewed and filed by the IRS all the way back to 2001. Once those returns have been filed, [Ms. Snell] can review them all [she] want[s]."