Opinion
Opinion By: Jack Conway, Attorney GeneralAmye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Annette Dupont-Ewing appeals the actions of the Victoria Estates Homeowners' Association ("HOA") in responding to her May 19, 2015, email to HOA board members in which she requested a copy of the HOA's contract with attorney Nathan Billings, and invoices submitted by Mr. Billings, as well as "the invoices/ receipts for the Rosquist issue and Professional Legal Phillip's Case." In the same email, Ms. Dupont-Ewing questioned the HOA's failure to give notice to the homeowners of an April 22, 2015, meeting. The HOA responded to Ms. Dupont-Ewing's email, through counsel, on May 19. The HOA did not treat her email as an open records request or open meetings complaint, but responded to each of the concerns she raised. On appeal, Ms. Dupont-Ewing cites the Open Records Act and Open Meetings Act, and requests that we render a decision on the HOA's duties under these laws.
The term "homeowners' association" appears in only one place in the Kentucky Revised Statutes. KRS 141.010(14)(c) defines the term "taxable net income" in the case of homeowners' associations for purposes of the chapter dealing with revenue and taxation. We find no other reference to homeowners' association in the statutes. Noting that the duties of homeowners' associations are controlled by statute in certain states, Black's Law Dictionary defines the term as "an association of people who own homes in a given area, formed for the purpose of improving or maintaining the quality of the area . . . pursuant to a restrictive covenant or a declaration of restrictions." Black's Law Dictionary 660 (West, 5th ed 1979). Kentucky is not among the states that attempt to regulate homeowners' associations by statute. 1 Homeowners' associations which are formed pursuant to a restrictive covenant "are contractual in nature and bind the parties thereto in the same manner as would any other contract." 20 AmJur 2d, Covenants, Conditions, and Restrictions § 1 (1995).
Although the term public agency is expansively defined under both the Open Meetings and Open Records Laws, it does not extend to homeowners' associations. The definition of the term is not identical in each of the laws. The broader definition is found in the Open Records Law at KRS 61.870(1). That statute provides:
"Public agency" means:
(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[.]
Under this definition, resolution of the question of whether an entity is a public agency turns on the manner of its creation or the source of its funding. The Open Meetings Law, KRS 61.805(2), is identical to the definition of "public agency" set forth in the Open Records Law save for omitting any reference to state or local government officers, the courts or judicial agencies, and entities that receive state or local authority funds. A homeowners' association cannot be characterized as a public agency under either of these definitions. It discharges no public governmental function, is not created by legislative or executive act, does not owe its existence to a public agency, and does not receive state or local authority funds.
Having located no statute, case, or Attorney General's opinion suggesting otherwise, we find no legal basis on which to conclude that the Open Records and Open Meetings Acts apply to the governing bodies of homeowners' associations and their meetings. We therefore conclude that Victoria Estates Homeowners' Association did not violate either act in responding to Ms. Dupont-Ewing's May 19 email.
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.
Footnotes
Footnotes
1 HB 53 was introduced in the 2015 legislative session. Aimed at regulating planned communities, the bill defined that term to exclude condominiums but included "residential communities . . . composed of individual lots for which a deed, common plan, or declaration requires" membership in an association that governs the community. The bill required notice of association meetings to every owner and addressed the conduct of meetings. The bill also ensured the right of "any owner" to examine the books, records, and minutes of the association with certain clearly defined exceptions. It did not, however, subject HOAs to the Kentucky Open Records or Open Meetings Act. HB 53 was not enacted into law.
Condominium associations, on the other hand, are statutorily regulated at KRS 381.805 through 381.900. The Horizontal Property Law establishes guidelines for "condominium property regimes" that, until 2012, included a co-owners' right to examine financial records of the regime "at convenient hours on working days, that shall be set and announced for general knowledge." KRS 381.865 (repealed). In 2011, the General Assembly enacted the Kentucky Condominium Act, codified at KRS 381.9101 to 381.9207, aimed at "modernizing the laws governing condominiums." KRS 381.9119(2)(a). Among other things, the Act addresses management of condominiums, including access to association records, KRS 381.9197(1), and meetings of the association, KRS 381.9177.