Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Woodside Preservation, LP (Middletown Apartments/Woodside Village) violated the Open Records Act in partially denying Tom Stone's undated request to inspect:
. records of contract, work description, and salary for Officer Gregory and any other security personnel;
. work schedule, time on property, and call log for Officer Gregory and any other security personnel;
. Woodside Village's agreement, inspections by Kentucky Housing Corporation, and complaints concerning Woodside to or from KHC; [and]
. All records containing [Mr. Stone's] name or that refer to [him] together with [his] complete tenant file.
Mr. Stone supplemented his appeal with a copy of the Kentucky Housing Corporation Year End Settlement Report (Voucher Date: From 1/1/2012 to 8/31/2013) reflecting Middletown Apartment's 1 receipt of $ 619,969.00 under contract number KY360011010. In the absence of documentation supporting Woodside Preservation's position that it is not a public agency, within the meaning of KRS 61.870(1)(h), we find that Woodside is subject to the requirements of the Act and must afford Mr. Stone access to any nonexempt records identified in his request that are "related to functions, activities, programs, or operations funded by state or local authority " 2 if these funds represent 25% or more of the funds it expends in the Commonwealth. KRS 61.870(2) .
Having failed to respond to Mr. Stone's undated request, captioned "Records Inspection Request," Woodside Preservation responded to this office's notification of receipt of his open records appeal in a letter dated September 6, 2013. Woodside prefaced its response with a "Reservation of Rights Regarding Lack of Jurisdiction," premised on its position that "it does not believe it is subject to the [Open Records] Act." Alternatively, Woodside asserted:
. Mr. Stone's requests contained no reference to the Open Records Act and Woodside "had no basis to believe that the request was made pursuant to the Act;"
. Mr. Stone's requests were vague, overbroad, and failed "to specify what time period is involved;" and
. Mr. Stone's requests "could be construed to include privileged attorney/client communications and materials prepared in anticipation of litigation" the disclosure of which is precluded by "the Kentucky Rules of Civil Procedure and the Supreme Court Rules of Ethics."
In closing, Woodside expressed a willingness to share "the non-privileged portions" of Mr. Stone's tenant file with him at its attorney's office "at a mutually convenient time and date."
Given its disputed status under the Open Records Act, on September 11, 2013, this office requested that Woodside "elaborate on its statement that it is not subject to the Open Records Act by addressing the applicability of KRS 61.870(1)(h) to it" under authority of KRS 61.880(2)(c). 3 We asked that Woodside:
describe the terms of the contract between Middletown Apartments and the Kentucky Housing Corporation and indicate whether any of Woodside's other holdings operate under a similar contract and are the recipients of state or local authority funds, and what percentage of the total funds Woodside expends in the Commonwealth these state or local authority funds represent.
Woodside did not respond to our inquiry. Because KRS 61.880(2) assigns the burden of proof to the agency resisting disclosure, and because it presents no documentation supporting its position that it is not a public agency pursuant to KRS 61.870(1)(h), we must conclude that if the funding Woodside receives from KHC meets or exceeds the 25% threshold, it is a public agency for purposes of open records analysis. Accord, 12-ORD-005; 12-ORD-006.
As amended in 2012, KRS 61.870(1)(h) defines the term "public agency" to include:
Any body which, within any fiscal year, derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds. However, any funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process shall not be included in the determination of whether a body is a public agency under this subsection[.]
Middletown Apartments, an apparent holding of Woodside Preservation, was the undisputed recipient of $ 619,969.00 from the Kentucky Housing Corporation in the period from January 1, 2012, through August 31, 2013. KHC's website reflects that these funds were allocated under the Project-Based Section 8 and Housing Credit programs. 4 Clearly, then, it receives some public funding through KHC. That this funding may be:
"federally 'born,' it 'comes of age' as state funding when it is deposited into the State Treasury and appropriated by the General Assembly to [KHC] per Section 230 of the Kentucky Constitution." This funding retains its state character when allocated to [Woodside Preservation (Middletown Apartments/Woodside Village)] under its contract with [KHC], and it 'matures' with continuing state oversight under KRS [Chapter 198A]."
10-ORD-092, p. 1-2; accord, 10-ORD-115 (non-profit entity licensed as health maintenance organization that received in excess of 75% of its funding from federal Medicaid funds deposited into the State Treasury upon receipt and appropriated by the General Assembly was a public agency per KRS 61.870(1)(h). 5 In its "Programs Overview," available on-line at http://www.kyhousing-org/uploadedFiles/Data_Library/Publications_and_ Reports/ProgramGuide.pdf, KHC delineates its duty to "administer two federal rental assistance programs through which the U.S. Department of Housing and Urban Development pays a portion of the rent and the participant pays the rest" that includes "contract administration . . .[,] program compliance functions to ensure that HUD-subsidized properties are serving eligible families at the correct level of assistance[,] and asset management functions to ensure the physical and financial health of the properties." "Program Overview", p. 9-10. Consistent with the analysis set forth in 10-ORD-092 and 10-ORD-115, we find that the HUD funding Woodside Preservation (Middletown Apartments/Woodside Village) receives under its contract with KHC constitutes state funding and that if this funding represents twenty-five percent or more of the funds it expends in the Commonwealth, it is a public agency to the extent of that funding. Accord, 02-ORD-222. 6
Having so concluded, we find that the arguments advanced by Woodside Preservation in support of the denial of Mr. Stone's requests are unpersuasive. With regard to Woodside's argument that Mr. Stone's failure to expressly invoke the Open Records Act in his open records request relieved it of the obligation to respond to that request, we direct its attention to Sykes v. Kemper, No. 2000-CA-000714 (Ky. App. 2001), recognizing that the failure to issue a response to an open records request was not excused by the requester's failure to identify the request as a request made under the Open Records Act. 7 See also 99-ORD-148; 01-ORD-168; 06-ORD-197; 12-ORD-114.
With regard to Woodside's argument that Mr. Stone's requests are vague, overbroad, and fail to specify a time frame, we direct its attention to
Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). Where, as here, a requester asserts the right to inspect nonexempt public records, as opposed to receiving copies of the nonexempt records through the mail, KRS 61.872(2) requires nothing more than a "descri[ption] of the records to be inspected. 8" In Chestnut , above, the Court opined:
[N]othing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected. " We must interpret statutes as written, without adding any language to the statute, even in open records cases. [Footnote omitted.] And it is obvious that the General Assembly chose only to require the records to be described. It did not add any modifiers like particularly described.
. . .
Because we lack the power to rewrite the open records act, we cannot add a particularity requirement where none exists. Chestnut described the records he wanted to see - the content of his inmate file. It appears obvious to us that Chestnut's request was adequate for a reasonable person to ascertain the nature and scope of Chestnut's open records request. [Footnote omitted.] He was required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen. [Footnote omitted.]
Chestnut at 661, cited in 12-ORD-082, pages 3 and 4.
Judged by the onsite inspection standard found at KRS 61.872(2), as interpreted in Chestnut , Mr. Stone's requests were "adequate for a reasonable person to ascertain [their] nature and scope" and thereafter locate, review, and produce for inspection the records sought. He asked to inspect specified employment records relating to Officer Gregory and any other security personnel; scheduling records for Officer Gregory and any other security personnel; Woodside's contract with KHC; inspections of Woodside's holdings conducted by KHC; and complaints about Woodside submitted to KHC. His final request for all records containing his name or that refer to him, although broad in scope, can likely be fulfilled by examining the email accounts of employees with whom Mr. Stone has dealt and files relating to ongoing litigation with Mr. Stone, as well as his tenant file.
Pursuant to KRS 61.878(4), if any responsive record located in this search "contains material which is . . . excepted under [the statutory exceptions founds at KRS 61.878(1)(a) through (n)], [Woodside] shall separate the excepted and make the nonexcepted material available for examination." This includes "privileged attorney/client communications and materials prepared in anticipation of litigation. " As Kentucky's courts recognized in
Hahn v. University of Louisville, 80 S.W.3d 771, 775 (Ky. App. 2001), "to the extent [privileged] material . . . can be said to 'pertain to civil litigation' and to be beyond discovery under the Civil Rules, its disclosure . . . is expressly exempted." Citing CR 26.02; accord,
Commonwealth, Cabinet for Health and Family Services v. Scorsone, 251 S.W.3d 328 (Ky. App. 2008) (addressing the limits of the attorney-client privilege, KRE 503, in an open records dispute). Thus, Woodside's final argument fails as justification for blanket nondisclosure of the records identified in Mr. Stone's request.
We are obliged to comment on one additional condition set forth in Woodside's belated response to Mr. Stone's request, namely, its insistence that Mr. Stone make provision for inspection of his tenant file at Woodside's attorney's office "at a mutually convenient time and place." Focusing exclusively on its duties as a public agency under the Open Records Act, and not on conflicting narratives concerning protective orders, we believe it is incumbent on Woodside to afford Mr. Stone access to the nonexempt records identified in his request in "suitable facilities," KRS 61.872(1), "[d]uring the regular office hours of the public agency. " KRS 61.872(3)(a). Woodside cannot condition Mr. Stone's inspection of the responsive records on his availability at a "mutually convenient time" or at a facility that is unsuitable based on his physical restrictions. We urge Woodside Preservation (Middletown Apartments/ Woodside Village) to review all provisions of the Open Records Act to ensure compliance with the Act.
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:
Tom StoneMark Smedal
Footnotes
Footnotes
1 Woodside Preservation does not dispute that Middletown Apartments is one of its holdings.
2 See discussion below relating to private entity's receipt of federal funding through a contract with a state agency.
3 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed. (Emphasis added.)
4 A separate entry on KHC's website identifies Woodside Village, located at the same address, but with fewer assisted units, as the recipient of HUD Sec. 236 funds in addition to Project-Based Section 8 and Housing Credits funds. Having attempted to do so by reviewing the Secretary of State's website, we are unable to piece together the corporate puzzle that includes Middletown Apartments, Woodside Village, and Woodside Preservation.
5 Citing KRS 41.070(1) which provides that "[u]nless otherwise expressly provided by law, no receipts from any source of state money or money for which the state is responsible shall be held, used, or deposited" other than in the state Treasury. (Emphasis added.)
6 KRS 61.870(1)(h) was amended in 2012 to exclude from the twenty-five percent funding calculation "funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a public competitive procurement process . . . ." Woodside Preservation presents no proof that HUD funds appropriated by the General Assembly "are provided by a contract obtained through a public competitive procurement process." Moreover, the provision of non-transitory housing, which is governed by the federal Fair Housing Act, is generally viewed as separate from the provision of goods and services, which is governed by the Civil Rights Act of 1964.
7 Sykes v. Kemper is an unpublished opinion. It was issued in 2001. Although there is no published opinion adequately addressing this issue, it cannot be cited or used as authority in any court of the state because it was issued before January 1, 2003. CR 76.28(4)(c). Nevertheless, it is indicative of the position the courts might adopt in a later published opinion relative to an agency's duties upon receipt of an open records request that is not clearly identified as such inasmuch as KRS 61.872(2) does not require an open records applicant to identify his or her request as an open records request.
8 Compare, KRS 61.872(3)(b) requiring that a requester who wishes to obtain copies of nonexempt records through the mail "precisely describe[] the public records which are readily available within the public agency."