Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Lafferty Enterprises, Inc., is not a public agency for open records purposes and therefore cannot be said to have violated the Act in failing to respond to Peggy Tolson's February 20, 2009, request for a copy of its protocols and procedures. 1 On behalf of Lafferty Enterprises, Inc., attorney Mark Leach notified this office that Lafferty "is a private ambulance service" that "derives far less than twenty-five percent of its funds expended by it by the Commonwealth of Kentucky from state or local authority funds." Although Mr. Leach did not indicate what percentage of Lafferty's funds consisted of Medicaid reimbursement, he cited 06-ORD-210 and 08-ORD-084 for the proposition that "Medicaid funds received . . . 'do not constitute "state or local authority funds" for purposes of determining public agency status under KRS 61.870(1)(h).'" Accord, 93-ORD-90 (holding that a professional services corporation comprised of physicians who were, coincidentally, employed by the University of Louisville, was not a public agency even though it received reimbursement for services through Medicare and Medicaid); compare 02-ORD-222 (holding that Seven Counties Services, Inc., was a public agency notwithstanding the fact that it was organized as a private, nonprofit corporation because the funds it derived from the state did not represent claims payment or fees for services that could properly be categorized as Medicare and Medicaid payments, but instead consisted of a fixed annual amount under its contractual agreement with the State); see also, N.D.A.G. 04-0-04 (North Dakota Attorney General holds that a nonprofit hospital was not a public agency for purposes of North Dakota's open records and open meeting law if the only State money it received was Medicaid money for services rendered since this "constituted reimbursement for services rendered and, therefore, appeared to represent a fair market value exchange of goods and services for the public funds received by the hospital").
It is the decision of this office that 08-ORD-084, a copy of which is attached hereto and incorporated by reference, is directly controlling. In that open records decision, the Attorney General held that the Medical Center EMS, LLC, was not a public agency for open records purposes notwithstanding the fact that it received some state funding in the form of Medicaid reimbursement. While Lafferty Enterprises, Inc., fails to specify the precise percentage of state funding derived from Medicaid reimbursement, 2 it is of little consequence in view of the fact that this office has, since 1993, declined to factor such reimbursement into the private entity's percentage of public funding. Because it does not qualify as a public agency within the meaning of KRS 61.870(1)(h), or any of the other definitional subsections found at KRS 61.870(1), we find that Lafferty Enterprises, Inc., is not a public agency under, nor are its records governed by, the Kentucky Open Records 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.
Peggy L. TolsonMike LaffertyMark W. Leach
Footnotes
Footnotes
1 Ms. Tolson's request was directed to Trans-Star Ambulance Service. Our review of the corporate records on file with the Kentucky Secretary of State indicate that "Trans-Star Ambulance Service" was an assumed name that expired in 2008 and is inactive. Lafferty Enterprises, Inc., on the other hand, is an active corporation in good standing with the Secretary of State.
2 This office has recently acknowledged the challenges it faces in resolving the issue of public agency status under KRS 61.870(1)(h). See, 09-ORD-033, p. 8.