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 Sullivan & Cozart, Inc., a private for profit corporation that derives less than twenty-five percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority, is not a public agency within the meaning of KRS 61.870(1)(a) through (k), and its records are not subject to inspection under the Open Records Act. It cannot, therefore, be said to have violated the Act in the disposition of John Rogers' September 30, 2011, request for records relating to the corporation's expenditures from January 1, 2011, to August 31, 2011. Because Sullivan & Cozart is not a public agency as defined in KRS 61.870(1)(a) , (b), (c), (d), (e), (f), (g), (i), (j), or (k), 1 resolution of this question hinges on the application of KRS 61.870(1)(h) to the corporation.
KRS 61.870(1)(h) defines the term "public agency" as "any body that derives at least twenty-five percent of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." In correspondence directed to this office after Mr. Rogers initiated his appeal, Sullivan & Cozart submitted proof of its non-public status in the form of an affidavit of its secretary/treasurer, Robert A. Lawrence, attesting to the fact that the "the aggregate amount received from projects where [it] contracted directly with a state or local governmental entity" during fiscal years ending March 31, 2011, March 31, 2010, and March 31, 2009, represented only 19.96% of its total receipts. Sullivan & Cozart employed the standard three year aggregate approach utilized by the Small Business Administration under authority of 13 CFR 121.104. In the absence of any evidence to the contrary, or objection to the three year aggregate approach it employed, 2 we find that Sullivan & Cozart is not a public agency within the meaning of KRS 61.870(1)(h). 11-ORD-191, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue of the corporation's status under the Open Records Act.
Given Sullivan & Cozart, Inc.'s cooperation in resolving this issue, we reject Mr. Rogers' suggestion that 11-ORD-143 compels us to treat it as a public agency or is otherwise controlling. The public agency resisting disclosure of public records in 11-ORD-143 refused to cooperate with the Attorney General in resolving the same issue by responding to inquiries submitted under authority of KRS 61.880(2)(c). Sullivan & Cozart furnished information confirming its non-public status. 11-ORD-143 is therefore inapposite.
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:
John RogersJames C. Wade
Footnotes
Footnotes