Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Falmouth City Clerk violated the Open Records Act in the disposition of Matthew Best's request for records relating to the Falmouth Festival Committee. For the reasons stated below, we do not find a violation of the Act.
Mr. Best's undated letter, addressed "To whom it may concern," requested "to view, but no [ sic ] limited to, the Budget for the Falmouth Decoration Committee, documents pertaining to their budget, and expenditures on behalf of the committee members. These records request [ sic ] may be needed for the past four fiscal years." The request was received by the Falmouth City Clerk on February 4, 2015.
On February 6, 2015, Falmouth City Clerk/ Treasurer Terry England responded, in relevant part, as follows:
[T]he Falmouth Decoration Committee, aka the Falmouth Festival Committee[,] is a voluntary group comprised [ sic ] of a representative from Council and others that person solicits to assist. It was originally created when Councilmember April DeFalco served as Mayor in an attempt to promote something positive in our community ?
There are not records for this committee as it was an appropriation that was budgeted to promote community activities. Similar appropriations are made to the Pendleton Co Recreation Committee, KRT, Pendleton Search and Rescue, Gateway, the Airport Board, Fireworks and Gateway project. None of these are asked for receipts for the funding given to them. It is assumed that the funds will be used constructively to promote a positive image for the City of Falmouth. The funding to this voluntary committee is much less th[a]n the funding to the above mentioned appropriations.
Mr. Best initiated an appeal to the Attorney General on February 10, 2015.
On February 19, 2015, city attorney Henry Watson III responded to the appeal, stating as follows:
The City of Falmouth is not the keeper of the records of the Falmouth Festival Committee. The only records the city has that may relate to this ? reflect city of Falmouth appropriations and payments to the committee, although not exactly what Mr. Best has requested.
On February 25, 2015, Mr. Watson stated that the city had located all these related records for the years in question and provided them to Mr. Best.
Mr. Watson's February 19 response continues:
It is our understanding that the City of Falmouth is not the sole governmental unit providing funding to the committee.
? It is unknown whether Mr. Best's "To Whom it may concern" request was forwarded to the Falmouth Festival Committee, or any of the individual members or representatives thereof, so it is unknown whether or not said committee or individual is preparing a response or has responded to Mr. Best's request. The City of Falmouth is not the agency for service of process of requests to another agency, especially when directed, "To whom it may concern."
What is not entirely clear from the record is whether the Falmouth Festival Committee is a public agency as defined in KRS 61.870(1). Subsections that may be relevant to this determination include (1)(h) through (1)(j):
(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[.]
If the Falmouth Festival Committee was in fact a public agency, it was incumbent upon the city clerk to provide Mr. Best with the name and location of the committee's records custodian, if known. KRS 61.872(4). Otherwise, we find no violation of the Open Records 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.