Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Pike County Humane Society, Inc., violated the Open Records Act in the disposition of Sandra Childers' September 25, 2008, request for copies of income and expenditures for fiscal years 2005, 2006, 2007, and 2008, "including Pike County and other contributions." 1 For the reasons that follow, we find that the Humane Society is not governed by, and therefore cannot be said to have violated, the Act in the disposition of Ms. Childers' request.
Having received no written response to her request, Ms. Childers initiated this appeal. Shortly thereafter, this office requested additional information from the Humane Society necessitating an extension of the statutory deadline for issuing an open records decision per KRS 61.880(2)(b) and (c). We asked that a representative of the Humane Society document how it was created and from what sources it derives its funding, with a particular emphasis on the percentage of funds it receives from state or local authority.
On behalf of his client, Humane Society attorney David C. Stratton responded to this request. Correcting a misstatement made by the county in responding to this appeal, he explained that although the Pike County Fiscal Court received a $ 100,000 grant from the Commonwealth of Kentucky in 2004:
[t]he Humane Society cannot spend that money, only the fiscal court for the building of a new animal shelter. The Humane Society has raised money for this project but the building has not yet started. The Pike County Humane Society has never had any rights to receive this $ 100,000 grant.
The Humane Society did receive on September 11, 2008, a $ 25,000 grant that was originally designated from coal severance money. That money was spent in regard to the acquisition of property for the new shelter to be built on. I am enclosing a copy of the deed showing that the price of the property was $ 152,000. Also enclosed is a copy of the checks that were written to the sellers of the property. This deed and checks clearly show that the $ 25,000 grant did not constitute 25% of our expenditures for the year. We have other miscellaneous expenditures totaling thousands of dollars that I am not including because I don't think it is necessary to prove the point.
Therefore, as you can see, the Humane Society does not qualify as a public entity according to the statutory definitions. For your information the Humane Society is a 5013(C) non-profit charitable organization.
In sum, it was the Humane Society's position that "it does not fall under the definition of public agency as defined under KRS 61.870(1)(h)."
In 96-ORD-127, this office determined that the Murray-Calloway County Animal Shelter was not a public agency for open records purposes because it did not receive 25% or more of the funds it expends in the Commonwealth of Kentucky from state or local authority funds or otherwise fall within any of the definitional sections found at KRS 61.870(1)(a) through (k). A copy of that decision is attached hereto and incorporated by reference. Although the relationship between the Pike County Humane Society, Inc., and the Pike County Fiscal Court is far more attenuated than the relationship between the Humane Society of Calloway County and the Calloway County Fiscal Court, 2 in 96-ORD-127 we recognized that the Humane Society was a private, not-for-profit corporation that was not governed by the Kentucky Open Records Act because it received less than 25% of its funds from state or local authority.
In the appeal now before us, the Pike County Humane Society adduces sufficient proof to justify its belief that it, like the Humane Society at issue in 96-ORD-127, is not a public agency for open records purposes. Mr. Stratton provided documentation supporting his assertion that the $ 25,000 the Humane Society received from the Fiscal Court in 2008 represented less than 25% of its expenditures for the year. Bearing in mind that the $ 100,000, which Ms. Childers' maintained was appropriated to the Humane Society, was in fact appropriated to the Pike County Fiscal Court, and that the documentation she presented to this office relative to the Humane Society's charitable gaming activities is not pertinent to our analysis, we find that the Pike County Humane Society, Inc., is not a public agency pursuant to KRS 61.870(1)(h) or any other provision of KRS 61.870(1)(a) through (k), that it is not governed by the Open Records Act, and that it therefore cannot be said to have violated the Act in the disposition of Ms. Childers' request.
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 Ms. Childers also submitted open records requests to the Pike County Fiscal Court and the Department for Environmental Protection. On appeal, she seeks review of her unanswered request to the Humane Society only.
2 The Humane Society is not contractually bound to the Fiscal Court.