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 Kentucky Telco Federal Credit Union violated the Open Records Act in the disposition of Gary Tucker's July 27, 2007, request for eight categories of records relating to his deceased mother's account. As a threshold issue, we must determine if Kentucky Telco is a public agency for open records purposes and therefore subject to the procedural and substantive requirements of the Act. For the reasons that follow, we find that Kentucky Telco is not a public agency as defined at KRS 61.870(1) and did not violate the Act in the disposition of Mr. Tucker's request.
In correspondence directed to this office following commencement of this appeal, Senior Vice President Ronald A. Gagliardi explained that Kentucky Telco does not fall within the definition of the term "public agency" found in the Open Records Act, indicating that it is instead a federal credit union that receives no state or local authority funds and is not subject to regulatory oversight by any state agency "except as permitted by the Federal Credit Union Act." Continuing, Mr. Gagliardi observed:
Without an order from a court with proper jurisdiction over [it], Kentucky Telco is unable to provide information regarding a person's account and or estate to any third party. Only a duly qualified executor or person or persons named as having an ownership interest in the account may access such records; Gary Tucker is neither on [his mother's] account . . . ." 1
In light of Mr. Gagliardi's statement that Kentucky Telco is a federal credit union that receives no state or local authority funds, we find no violation of the Open Records Act in its disposition of Mr. Tucker's request.
The term "public agency" is expansively defined at KRS 61.870(1) to include:
(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), (i), or (j) of this subsection;
(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 (j) 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.
This provision operates in para materia with KRS 61.870(2), and the two statutes must be construed together. KRS 61.870(2) thus provides:
"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. 2
(Emphasis added.) Despite the expansive language of these provisions, and the clearly expressed legislative intent that the Open Records Act must be strictly construed so as to insure the broadest possible access to public records, 3 the Attorney General has recognized, on a number of occasions, that a private corporation is not a public agency for open records purposes 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) as construed in OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 94-ORD-98; 96-ORD-99; 97-ORD-65; 99-ORD-65.
In 06-ORD-064, the Attorney General determined that Members First Federal Credit Union was "a private corporation, not a 'public agency' as defined by KRS 61.870(1)," and that the Open Records Act did not apply to it. At page 2 of that decision, we focused on the definition of the term "public agency" found at KRS 61.870(1)(h), noting that the Office of the Attorney General has "consistently recognized that a private corporation comes within the purview of the Open Records Act only if it derives at least 25% of its funds from state or local authority funds [citations omitted]." We concluded that nothing in the record on appeal suggested that Members First was a public agency or that it derived 25% of its funding from state or local authority. Extending the reasoning of that appeal to the instant appeal, we find that Kentucky Telco Federal Credit Union is not a public agency and that it is therefore not governed by the Open Records Act. 4 Perforce, we find that its disposition of Mr. Tucker's request did not constitute a violation of the Act.
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.
Footnotes
Footnotes
1 By letter dated July 30, 2007, Mr. Gagliardi advised Mr. Tucker that Kentucky Telco "is able to provide information regarding [his deceased mother's] account and/or estate only to the duly qualified executor or person or persons named as having an ownership interest in said account." Mr. Tucker, the letter indicated, "is not named as either."
2 Underlying the highlighted language appearing in KRS 61.870(2), when read in conjunction with KRS 61.870(1)(h), is the recognition that "[a]s far as open records are concerned, it is apparently the policy of the legislature that wherever public funds go, public interest follows," OAG 80-633, p. 2, citing OAG 76-648, and that the "use of [public] funds is a matter of public stewardship . . . and we can see no justification for keeping such records secret from the public." OAG 80-633, p. 2.
3 KRS 61.871.
4 We have confirmed with the Office of Financial Institutions that federal credit unions such as Kentucky Telco are chartered by the National Credit Union Association pursuant to 12 U.S.C. § 1751, and not by that office pursuant to KRS 286.6-015. It is instructive to note that Kentucky's statutes governing state credit unions expressly recognize "a special obligation of confidentiality to [their] members." KRS 286.6-185(1). It is reasonable to infer that this "obligation of confidentiality" extends to federal credit unions as well.