Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Knox-Whitley Animal Shelter (Shelter) violated the Open Records Act in the disposition of Frank Wright's request for records relating to the operation of the Shelter. For the reasons that follow, and based upon evidence presented that it does not receive at least twenty-five percent (25%) of its funding from state or local authority funds, we find that the Shelter is not a public agency for open records purposes and that it therefore did not violate the Act in the disposition of Mr. Wright's request.
In his February 14, 2008, request to the Shelter, Mr. Wright requested copies of its financial monthly reports, monthly reports of animals euthanized and adopted for the period of August 1, 2007 - January 31, 2008, minutes of meetings for October 2007 - January 2008, phone records for November 2007 and December 2007, and receipts of cash purchases made by the Shelter for the period of August 1, 2007 - January 31, 2008.
Having received no response to his request, Mr. Wright initiated the instant appeal.
This office has consistently recognized that a private non-profit 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. 92-ORD-1114; OAG 94-98. Those opinions were premised on the following definition of "public agency" set out in KRS 61.870(1)(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.
Pursuant to KRS 61.880(2)(c), and to facilitate our review of the issues on appeal, we requested that the Shelter provide this office with additional information to substantiate its position that it is not a "public agency, " as defined by KRS 61.870(1), and thus not subject to the Open Records Act.
In response to questions posed by this office, Amy Young, Shelter Director, and Harold R. Mandell, member of the Shelter's Board of Directors, advised that the Shelter is a private entity and receives less than 25% of its operating budget from public funding by Knox and Whitley Counties. They advised that the Shelter, whose board president recently resigned amidst controversy, could not provide hard evidence as to the precise amount of state and local funds it received in past fiscal years because budget records were not returned by the board president when she resigned. 1 They further indicated that the Board is currently negotiating a contract for the 2008 fiscal year with Knox and Whitley Counties, and that those counties have offered only $ 35,000.00 of an anticipated $ 180,000.00 budget. As support that it has received less that 25% of its funds from state or local authority funds in past years, the Shelter provided its 2006 income tax return which confirmed that fact. Under the scenario described for the current fiscal year, the Shelter will receive only 19.4% of its operating expenses from state or local authority funds.
Under the facts and circumstances presented in this appeal, we find that the Shelter does not receive twenty-five percent or more funding from any state or local authority to qualify as a "public agency, " pursuant to KRS 61.870(1)(h). We therefore conclude that the Shelter is not a "public agency" within the meaning of KRS 61.870(1)(h), or any other provision of KRS 61.870(1)(a) through (k), and is not subject to the Open Records Act. Accordingly, it is not required to either release its records, or to adhere to procedural requirements, in response to a request for its records under the Open Records Act. 00-ORD-91; 93-ORD-127.
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:
Frank WrightAmy YoungPat White, Jr.Paul K. Winchester
Footnotes
Footnotes
1 This statement appears in an article entitled "Animal Shelter Plans 'Beastie Ball'" that appeared in the February 19, 2008, Times-Tribune.