Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the record on appeal contains insufficient proof to support a finding that the Nelson County Youth Soccer Association is a public agency for open records purposes. The existence of a "Youth Sports Association Facility Agreement" between the Association and the Bardstown/Nelson County Parks and Recreation Department, under the terms of which the Association agrees "to provide its services in consonance with existing Department policies, ordinances, and good business practices," to furnish the Department with financial and operational records, and to undergo audit by the Department, does not alter the Association's private non-profit status and subject it to the application of the Open Records Act. Nevertheless, those records that the Association is contractually obligated to furnish to the Department are accessible to the public by submission of an open records request to the Department.
By letter dated February 14, 2011, Peter Trzop requested copies of the Association rules, regulations, and by-laws, written feedback on his coaching, all documents from 2010 to the date of his request containing his name, and financial records reflecting monies received and expended "since Dan Weir has been President of the Association." Mr. Trzop received no response to his request prompting him to make further inquiries. These inquiries resulted in his discovery of the referenced agreement between the Association and the Bardstown/Nelson County Parks and Recreation Department. He subsequently initiated an appeal to this office, noting that under the terms of the agreement the Association must provide services "in consonance" with Department ordinances and that the City of Bardstown has enacted an open records ordinance at Chapter 41 of its Code of Ordinances. It was his position that "when an organization accepting public funding, assets, and resources signs contracts that in effect make them state actors, these organizations must comply with the Kentucky Open Records Act or be found in violation of the law."
In correspondence directed to this office after Mr. Trzop initiated his appeal, Association President Dan Weir indicated that the Association is a private nonprofit youth sports group that "receives no public funding, and retains no public assets." Further, he advised that "[a]ll funds necessary to operate come from private individuals." Finally, he stated that "[b]oard appointments are all privately made with no governmental appointments. " For these reasons, Mr. Weir maintained that the Association is not subject to the Open Records Act.
Given the absence of a provision in KRS 61.870(1) establishing public agency status based on the existence of a contractual relationship obligating the private entity to adhere to governing agency law, we agree with Mr. Weir. Accord, 06-ORD-127 (holding that Northern Kentucky Bengal Tigers, Inc., is not a public agency for open records purposes, but is instead a private nonprofit entity that does not derive twenty-five percent or more of its funds expended in the Commonwealth from state or local authority funds). The local open records ordinance to which Mr. Trzop refers largely mirrors the state law governing access to public records and is no more rigorous in extending its scope to private entities that contract with the city, county, or joint city and county agencies.
Although the term "public agency" is expansively defined at KRS 61.870(1)(a) through (k) "to insure the broadest possible access to public records, " 06-ORD-162, p. 3, the statute's language is exclusive. We are not at liberty "to supply words or insert something or make additions . . . however just or desirable it may be to supply an omitted provision."
Hatchett v. City of Glasgow, 340 S.W.2d 248, 251 (Ky. 1961). By its express language, KRS 61.870(1)(a) through (k) extends to state and local government officers, agencies, and legislative bodies, as well as entities that owe their existence to state or local executive or legislative action, entities to which state or local authority is delegated by various means, and interagency bodies. The Nelson County Youth Soccer Association does not fall within any of these definitional sections.
KRS 61.870(1) also recognizes an entity "where the majority of its governing body is appointed by a public agency" and an entity that "derives at least twenty-five percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds" as a public agency. 1 Mr. Weir specifically addresses these provisions, advising us that the Soccer Association "receives no public funds, retains no public assets" and is fully funded by private individuals. Additionally, he advises that the members of its governing body are privately appointed. In sum, Mr. Weir provides persuasive proof that the Soccer Association is not a "public agency" as that term is defined at KRS 61.870(1)(a) through (k). Based on the proof he presents, we must agree.
Nevertheless, the Soccer Association is contractually obligated to provide, on an annual basis, the Bardstown/Nelson County Parks and Recreation Department with copies of:
. a list of Board of Directors and/or Association officers;
. a current roster of participants;
. a proposed budget;
. a financial statement from the previous year;
. a current set of by-laws;
. a schedule of games;
. proof of liability insurance/certificate of insurance coverage.
The Recreation Department may also access, at its discretion, records reflecting appropriate certification of coaches, revenue and expense reports from tournaments, camps, or clinics, food service permit information, and "detailed financial records." Because the Recreation Department is a public agency for open records purposes, those Soccer Association records transmitted to it under the terms of the contract are public records, pursuant to KRS 61.870(2), because they are "used, in the possession of or retained by a public agency. " Most of the records to which Mr. Trzop requests access must be made available to him upon submission of a written request to the Bardstown/Nelson County Parks and Recreation Department. The remaining records identified in his request to the Nelson County Youth Soccer Association, and exclusively in its possession, are not accessible because they are not public records of a public agency.
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:
Peter TrzopDaniel WeirJohn S. Kelley, Jr.
Footnotes
Footnotes
1 KRS 61.870(1)(h) and (i).