14-ORD-201
October 2, 2014
In re: John R. Likins/Natural Resources Conservation Service
Summary: The Kentucky Open Records Act only applies if the agency to which a request is directed is a “public agency” within the meaning of KRS 61.870(1). Inasmuch as the United States Department of Agriculture, Natural Resources Conservation Service is a federal agency subject to provisions of the Freedom of Information Act, rather than a “public agency” under KRS 61.870(1), it was not required to comply with provisions of the Open Records Act upon receipt of the request.
Open Records Decision
John R. Likins initiated this appeal by letter dated August 14, 2014, challenging the failure of District Conservationist Brent L. Miller to issue a timely written response upon receipt of his September 19, 2012, request for “the location where moneys was [sic] spent the last five years on the Caney Creek Watershed Conservancy District.” In response to Mr. Likins’ appeal, State Conservationist Karen A. Woodrich advised that the United States Department of Agriculture, Natural Resources Conservation Service (NRCS) “is a Federal Agency, and as such is not subject to Kentucky’s Open Record[s] Act.” Mr. Miller is an employee of NRCS, she continued, “not a state employee, and as such, is not subject to Kentucky’s Open Records Act.” Ms. Woodrich explained that any request for the records of NRCS must be addressed under the Freedom of Information Act (FOIA), 5 U.S.C. §552. Accordingly, NRCS issued a written response to Mr. Likins’ request on September 25, 2012, and provided him with forty-five (45) days in which to appeal its determination, but no appeal was received. All records pertaining to the Caney Creek Watershed Conservancy District (CCWCD) “are not under the jurisdiction or authority” of NRCS, Ms. Woodrich emphasized, nor is Mr. Miller an employee, officer, member, or agent of CCWCD. Rather, CCWCD is a special district authorized under KRS Chapter 262. Although CCWCD may be subject to the Open Records Act, she concluded, Mr. Miller, “in his capacity as a Federal Employee, and NRCS, are not subject to the Act.”
KRS 61.872(1) provides that “[a]ll public records shall be open for inspection by any person.” As defined in KRS 61.870(2), “public record” means “all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.” However, “Public record” shall not include “any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.” KRS 61.870(2). Resolution of this appeal turns on whether NRCS is a public agency within the meaning of KRS 61.870(1). The records of agencies falling within the parameters of KRS 61.870(1)(a) – (k) are subject to public inspection, unless one or more of the exceptions codified at KRS 61.878(1)-(n) applies, under the mandatory terms of the state Open Records Act. However, the definition of “public agency” codified at KRS 61.870(1) does not encompass federal agencies.
In 96-ORD-118, this office clarified that records in the custody or control of federal agencies are governed by FOIA “while the Open Records Act (KRS 61.870 to KRS 61.884) pertains to records in the custody or control of agencies of the state and local governments.” Id., p. 1; 06-ORD-108 (Lake Cumberland Corps of Engineers, a federal agency, is not subject to the Kentucky Open Records Act).1 Based upon the evidence of record, this office concludes that NRCS is not properly characterized as a public agency for purposes of the Open Records Act; nor, consequently, are the records of NRCS “public records” under KRS 61.870(2). This office has no basis upon which to find that NRCS or Mr. Miller violated the provisions of the Kentucky Open Records Act in relation to Mr. Likins’ September 19, 2012, request. Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Jack Conway
Attorney General
Michelle D. Harrison
Assistant Attorney General
#368
Distributed to:
John R. Likins
Brent L. Miller
Karen A. Woodrich
[1] Conversely, in 04-ORD-090, the Attorney General observed:
In Ferguson v. Alabama Criminal Justice Information Center, 962 F.Supp. 1446, 1447 (M.D. Ala. 1997), the United States District Court conclusively resolved this threshold issue, holding that neither 5 U.S.C. § 552, the Freedom of Information Act, nor 5 U.S.C. § 552(a), the Privacy Act, apply to state agencies. . . . [T]herefore, public agencies in Kentucky . . . are not governed by the “federal standard[.]”
Id., p. 5.