Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Ruben R. Salinas initiated this appeal by letter dated July 20, 2015, challenging the inaction of Correct Care Solutions, LLC (CCS) upon receipt of his July 1, 2015, request for the current Hepatitis Management Plan for the Kentucky Department of Corrections (DOC). Upon receiving notification of Mr. Salinas' appeal from this office, James G. Healy, CCS Director of Regulatory Affairs and Operations Support, responded on behalf of CCS. Mr. Healy first advised that CCS does not have any record of having received such a request, presumably because Mr. Salinas did not use the correct mailing address for CCS. Mr. Healey further argued that CCS is not a "public agency" within the meaning of KRS 61.870(1), nor, consequently, is the record in dispute a "public record" under KRS 61.870(2). Rather, CCS "is a corporate entity that provides health care services to inmates at jails and prisons, including inmates in the [DOC] system, pursuant to competitively bid contracts. . . . All of the revenue that CCS receives and expends in the Commonwealth of Kentucky is received through the public procurement process." Mr. Healy attached the affidavit of Regional Vice President Jeffrey J. Traczewski to substantiate his position.
In relevant part, KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person . . . and suitable facilities shall be made available by each public agency for the exercise of this right." Pursuant to 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. "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.
Resolution of the question presented, as indicated, turns on whether CCS is a "public agency" within the meaning of KRS 61.870(1), which broadly defines public agency to include:
(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 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 here each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]
Despite the expansive language of these provisions, which operate in tandem, and the clearly expressed legislative intent that the Open Records Act must be strictly construed so as to ensure the broadest possible access to public records, 1 the Attorney General has recognized, on a number of occasions, that a private corporation or company, whether not-for-profit or for-profit, is not a public agency for purposes of the Open Records Act unless it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." See KRS 61.870(1) as construed in OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 94-ORD-98; 96-ORD-99; 97-ORD-114; 99-ORD-65; 05-ORD-012; 06-ORD-220; 08-ORD-024; 09-ORD-042; 11-ORD-040; 11-ORD-142; 12-ORD-010. No evidence has been presented to suggest that CCS would qualify as a public agency under KRS 61.870(1)(a), (b), (c), (d), (e), (f), (g), (j), or (k); 2 likewise, 61.870(1)(i) is facially inapplicable given that its governing body is not appointed by a public agency. KRS 61.870(1)(h) is the only subsection that is potentially applicable. 3
Regional Vice President Traczewski confirmed that CCS is a healthcare company which provides healthcare services to inmates at jails and prisons across the United States, "including in the Commonwealth of Kentucky, and it was the winning bidder and is the current contractor for health care services to be supplied to inmates in the custody of the [DOC]."Mr. Traczewski further attested that he possesses knowledge regarding the operations of CCS in Kentucky and elsewhere, "including the type of operations from which CCS derives its revenues and from which it makes its expenditures in Kentucky." Most significantly, the healthcare services that CCS provides to inmates at jails and prisons, including those in the DOC system, are provided under "competitively bid contracts." Mr. Traczewski swore "under the pain and penalties of perjury that the contents" of his affidavit were true, and specifically advised that, "[a]ll of the revenue that CCS receives and expends in the Commonwealth of Kentucky is received through the public procurement process." The record on appeal contains no evidence to refute his August 5, 2015, affidavit regarding this dispositive fact.
Because all of the funds expended by CCS in the Commonwealth of Kentucky were derived from a state authority in compensation for goods or services provided under a contract obtained through a public competitive procurement process, and such funds are specifically excluded from the determination of whether it can be properly characterized as a "public agency" under KRS 61.870(1)(h), CCS does not satisfy the 25% threshold of that definitional provision. See 12-ORD-222. Accordingly, CCS is not subject to, nor can it be said to have violated the provisions of the Open Records Act.
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
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