Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kroll Laboratory Specialists, Inc., violated the Open Records Act in the disposition of Western Kentucky Correctional Complex (WKCC) inmate Brent Coley's request for "copies" of various listed items. For the reasons that follow, we cannot conclude that a violation of the Act occurred.
On November 4, 2009, Mr. Coley sent the following request to Kroll Laboratory Specialists, Inc., ("Kroll") at its address in Gretna, Louisiana:
My name is Brent Coley 223792 # Im [ sic ] thinking of being a legal aid and going through legal aid training. But befor [ sic ] I deacate [ sic ] my self I would like to no [ sic ] more about urine samples would you please answer the fowling [ sic ] questions. I'm also sending the money to pay for said copy's [sic ] I ask for. The Initial screen specimen batch of the internal chain of custody were [ sic ] I can better understand more of the urine sample's thank you for this matter please send copies on the fowling [ sic ] questions
1. Accession to batch
2. Aliquot for screen
3. Temperory [ sic ] storage
4. Transfer of custody
5. Screening
6. Hobbes
7. Waste
8. Discard
9. Batch numbers
Thank you for this matter
(Emphasis in original.) Having received no answer, Mr. Coley initiated an open records appeal with this office on November 20, 2009, in which he states:
I have 12 years at 85% precent [ sic ] Im concidering [ sic ] takeing [ sic ] legal aid training that is offerd [ sic ] Here at Western Kentucky Correctional Complex. So I can help other's to be better defended in correciontal [ sic ] court call hereings [ sic ]. And as well no more about law to help my case. Since urine sample's are so common these days I threw out the correciontal [ sic ] complex's. I ask and sent Kroll Labs question's and paid for copies on 11/04/09. As you can see the attached to open records request. With no avail[;] Kroll Labs refuse to answer. I feel Im pretected [ sic ] under the Guidelines of the Open Records to inspect Public Records Re - KRS Chapter 61. Will you please investagate [sic ] this matter. There paperwork on the 9 # questions Ive ask [ sic ] about.
(Emphasis in original.) On November 25, 2009, this office sent Kroll a copy of the appeal at the address provided by Mr. Coley, but no response has been received.
KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person." As defined in KRS 61.870(2), "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.
Resolution of this appeal depends in part on whether Kroll Laboratory Specialists, Inc., is a public agency within the meaning of KRS 61.870(1), which broadly defines "public agency" 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), (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 here each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection.
There is no basis in the record upon which to conclude or even suspect that Kroll is a public agency within this definition.
Kroll is a corporation located in Louisiana, a fact which would seem to exclude every possible category of "public agency" except KRS 61.870(1)(h). We stated in 09-ORD-033 that KRS 61.870(1)(h) entails an analysis of an entity's expenditures in Kentucky and what portion of that amount is derived from Kentucky state or local government funds. In this case, however, the appeal gives this office no reason to suppose that Kroll, an out-of-state corporation, either receives any funding from Kentucky state or local authority or expends any funds in Kentucky. On the contrary, the confusingly worded statement that Mr. Coley "threw out the correc[tion]al complex's," and sought information on urine samples from Kroll instead, implies that Kroll is an entity not associated with WKCC.
Unlike the case of AT&T Mobility Corporation in 09-ORD-042, which allegedly possessed cell phone records of the appellant, in this instance we have no reasonable basis for believing that Kroll does business in Kentucky or has sufficient minimum contacts with the Commonwealth of Kentucky to create jurisdiction. "[T]he Open Records Act ? presumes jurisdiction over the public agency involved." 03-ORD-251, p. 3; see also 08-ORD-064, p. 2 (overruled in part on other grounds by 09-ORD-033). Accordingly, we must conclude that Kroll is not a public agency under 61.870(1) and therefore was not required to comply with the provisions of the Open Records Act. See 96-ORD-197.
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 proceedings.
Brent Coley, # 223792Carrie Kattengell