Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, 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 because HMB Professional Engineers, Inc. ("HMB"), acknowledges its status as a public agency pursuant to KRS 61.870(1)(h), it is obligated to afford John Rogers access to records responsive to his October 5, 2011, request for expenditures from January 1, 2011, to August 31, 2011, to the extent the expenditures are "related to functions, activities, programs, or operations funded by state or local authority. " KRS 61.870(2) . Mr. Rogers requested "a list of expenditures of [HMB], including check number, date, amount and payee for all checks written from January 1, 2011, to August 31, 2011, . . . includ[ing] checks written to consultants, salaried individuals, and organizations." 1
In its October 11, 2011, response, HMB stated through counsel: "You have made a request of [HMB] who is not a public agency as defined by KRS Chapter 61. You have also requested broad non-specific proprietary business information and your request is denied." This appeal followed. In responding to this appeal on October 31, 2011, HMB asserted through counsel that it did not derive 25% of its funds expended in Kentucky from state or local authority funds under the definition of "public agency" in KRS 61.870(1)(h). HMB further stated:
Pursuant to KRS 61.878(1)(c), this broad and general request seeks financial information of "salaried individuals, consultants and organizations" which would include information of a personal nature and a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a).
The broad request for information seeks disclosure of materials generally recognized as confidential or proprietary which, if disclosed, would permit an unfair commercial advantage to competitors of HMB. The financial arrangement with other employees, consultants and other businesses would provide private, sensitive business costs and expenses to competitors. KRS 61.878(1)(c).
During the pendency of this appeal, HMB conducted a review of its accounts and discovered that its percentage of state or local authority funds did in fact meet the 25% threshold so as to qualify it as a "public agency" under KRS 61.870(1)(h), which it acknowledged in supplemental correspondence directed to this office. HMB continues, however, to assert the exemptions under KRS 61.878(1)(a) and 61.878(1)(c).
Since HMB acknowledges its status as a public agency pursuant to KRS 61.870(1)(h), records reflecting its expenditure of funds derived from state or local authority are by definition public records under KRS 61.870(2). At page 2 of OAG 90-7, this office recognized that "A contractor to a governmental entity ? must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case." HMB is not, of course, obliged to disclose records reflecting the expenditures of nonpublic funds, i.e., funds not derived from public contracts or other state or local authority funds. Its obligation to disclose responsive records is statutorily restricted to records "related to functions, activities, programs, or operations funded by state or local authority. " KRS 61.870(2). Keeping this limitation in mind, we turn to the exemptions asserted by HMB.
KRS 61.878(1)(a) protects "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " HMB does not elaborate on how this subsection would apply to a request for a list of checks written by a public agency, which would reveal only how much public money was expended by the public agency to pay other entities and individuals for goods or services. "Amounts paid from public coffers are perhaps uniquely of public concern? [T]he public is entitled to inspect records documenting exact amounts paid from public monies to include amounts paid for ? salaries, etc." OAG 90-30, p. 2 (citing OAG 76-717); see also 10-ORD-219 and authorities cited therein. In light of this precedent, we cannot uphold HMB's invocation of KRS 61.878(1)(a).
As to KRS 61.878(1)(c), we note a similar deficiency as to HMB's application of that subsection. Pursuant to KRS 61.880(2)(c), a public agency bears the burden of establishing the applicability of an exemption under KRS 61.878. Subsection (1)(c) of that section protects "records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which are compiled and maintained" under certain specified circumstances. HMB has failed to establish, or even to allege, that the "list of expenditures" requested by Mr. Rogers is a record "disclosed to an agency" under confidentiality or by requirement, or to demonstrate that it is "generally recognized as confidential or proprietary. " Accordingly, HMB fails to meet its burden of proof as to its reliance on KRS 61.878(1)(c). 11-ORD-157, p. 1.
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 RogersEdwin A. Logan, Esq.
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