Opinion
Opinion By: Jack ConwayAttorney General,Amye L. BensenhaverAssistant Attorney General
Summary :KRS 61.870(1) broadly defines the term "public agency, " as used in KRS 61.8715 to 61.884, but makes no reference to private individuals acting as executors of a decedent's estate. Private individual is not bound by the requirements of the Open Records Act in discharging his duties as executor of estate and therefore did not violate the Act in the deposition of inmate request for "verification of the amount of funds remaining in the estate trust account" established under the terms of his father's will.
Open Records Decision
Charles Moss appeals Wilford Davenport's "complete refusal to honor the open records request regarding information relating to [the] estate trust account" established for Mr. Moss in his father's will. It is unclear what, if any, action Mr. Davenport took in responding to Mr. Moss's request. On appeal, Mr. Davenport acknowledges his status as executor of the estate, but asserts that he is "a private individual and not a public agency" and that the Open Records Act does not apply to him. 1 We agree.
KRS 61.870(1) broadly defines the term "public agency" as used in KRS 61.8715 to 61.884, as:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) 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;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection;
Because Mr. Davenport is none of the above, KRS 61.870(1) is facially inapplicable to him. Mr. Davenport is entirely correct in the assertion that the Open Records Act does not apply to him. Mr. Moss has no enforceable right under the Act to obtain from Mr. Davenport "verification of the amount of funds remaining in the estate trust account" established for him under the terms of his father's will. Mr. Davenport is not bound by, and therefore did not violate, the Open Records Act in the disposition of Mr. Moss's October 20, 2014, open records request.
Either party may appeal this decision 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.
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