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 insufficiently advised as to the percentage of Hinkle Contracting Company's expenditures in the Common-wealth that is derived from state or local authority funds, we find that if that percentage is equal to or greater than twenty-five percent, Hinkle is a public agency for open records purposes and must afford the public access to records that relate "to functions, activities, programs, or operations funded by state or local authority. " KRS 61.870(1)(h); KRS 61.870(2). If the percentage is less than twenty-five percent, Hinkle is not a public agency for open records purposes and has no obligation to afford the public access to its records.
On October 3, 2011, John Rogers requested, inter alia , "a list of expenditures of [Hinkle Contracting Company], 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 Mr. Rogers stated that "[t]his information . . . needs to be copied and mailed to [him] . . . with any charges for copying and mailing . . . to be forwarded to [his] attention . . . ." 2 In correspondence directed this office after Mr. Rogers initiated his appeal, Hinkle denied Mr. Rogers' request but did not indicate the percentage of its funds that is derived from state or local authority funds, if any.
To facilitate our review of the issue on appeal, namely, Hinkle Contracting Company's public agency status under the Open Records Act, on February 16, 2012, this office requested "an affidavit and available documentation supporting [the] position that it is not a public agency as defined in KRS 61.870(1)(h) or any other definition found in KRS 61.810(1)." Hinkle elected to rely on its February 20, 2012, letter to this office. The available proof is therefore inconclusive as to the company's status under the Open Records Act.
Hinkle neither acknowledges nor denies that it derives any funds it expends in the Commonwealth from state or local authority funds. Without this information, we cannot conclusively determine whether it is a public agency pursuant to KRS 61.870(1)(h) and whether it violated the Open Records Act in denying Mr. Rogers' request. Accordingly, we find that if Hinkle Contracting Company derives at last twenty-five percent of the funds it expends in the Commonwealth from state or local authority funds, it is a public agency pursuant to KRS 61.870(1)(h), and its denial of Mr. Rogers' request for records, insofar as that request relates to records related to functions, activities, programs or operations funded by state or local authority, constituted a violation of the Open Records Act. If it does not derive at least twenty-five percent of the funds it expends in the Commonwealth from state or local authority funds, it is not a public agency pursuant to KRS 61.870(1)(h) and did not violate the Open Records Act in denying Mr. Rogers' request. Accord, 12-ORD-009.
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 RogersBuckner Hinkle, Jr.Henry L. Hinkle
Footnotes
Footnotes
1 We note that Mr. Rogers requested a "list of expenditures. " Unless a list of expenditures for the referenced time frame already exists, Hinkle Contracting Company is not obligated to create one if it derives twenty-five percent of the funds it expends in the Commonwealth from state or local authority funds and is therefore a public agency for open records purposes. See, e.g., OAG 89-45 (recognizing that the Open Records Act "does not require public agencies to carry out research or compile information to conform to a given request"). See also, OAG 76-375 (recognizing that public agencies "are not obligated to compile a list or create a record to satisfy an open records request").
2 If Hinkle Contracting Company is a public agency pursuant to KRS 61.870(1)(h), it is not obligated to mail Mr. Rogers the responsive record or records. KRS 61.872(3)(b) relieves an agency of its duty to mail copies if the requester fails to precisely describe the records sought and the records are not readily available within the agency. Mr. Rogers did not request a particular check by payee or check number, and, if it is a public agency, Hinkle is not required to mail him imprecisely described records.