Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Meetings Decision
Bernard Watts appeals the Louisville Pontiac Club's disposition of his August 27 and October 20, 2015, requests for records relating to a certificate of deposit issued to the club by Stock Yards Bank & Trust. The club failed to respond to these requests, prompting Mr. Watts to initiate this open records appeal.
Upon receipt of notification of Mr. Watts' appeal, club President Rick Kaiser responded to the allegations of noncompliance. Having reviewed KRS 61.870(1), he concluded that the club does not "meet[] any of the definitions of a 'public agency' under [61.880(1)] a through k." He explained:
We are a Non-profit Car Club[.] [T]o belong you need to be a Pontiac Enthusiast and pay a minimal annual due. We do not receive any State or Local monies and NONE of the Volunteers receive compensation, NONE are employees of the Club, NOR are they employees of state or local government.
Mr. Kaiser provided this office with a copy of the club's by-laws to substantiate his position.
KRS 61.870(1) contains a broadly worded definition of the term "public agency" that extends to:
(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;
Although broad in scope, the term "public agency" is not all-encompassing. In general, it excludes private entities that do not exist by virtue of state statute or local ordinance, 1 do not receive state or local funding, or whose governing body members are not appointed by state or local officials.
The Louisville Pontiac Club was incorporated in 1992 "to promote the preservation, enjoyment, and restoration of Pontiac GTO and other special interest automobiles . . . ." Louisville Pontiac Club Articles of Incorporation (received and filed on April 10, 1992). Its by-laws describe its related purposes as education, promotion of membership in the Pontiac Oakland Club International, and participation in car shows and related events. Bylaws of the Louisville Pontiac Club Article II. Its officers are "voted or approved by a majority of the club members." Bylaws Article III and Article V. A portion of its budget is derived from annual membership dues. There is no indication that it receives any state or local authority funds. Bylaws Article VIII. Although the club affords "[a]ny active member" access to records and books maintained by the club, it does not extend the same privilege to non-members.
The requester, Mr. Watts, is a former member who wishes to access records of the club through an open records request. Our review of the Louisville Pontiac Club's status under KRS 61.870(1) confirms Mr. Kaiser's view that it is beyond the reach of Kentucky's Open Records Act. Accord, 06-ORD-167 (private, non-profit organization that does not receive state or local funds, is not a public agency) ; 12-ORD-057 (limited liability corporation, that does not receive state or local funds, is not a public agency) . We therefore find no violation of the Act.
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 Private entities incorporated under Title XXII, Private Corporations and Associations, of the Kentucky Revised Statutes are not governed by the Open Records Act unless, within any fiscal year, they derive at least 25% of their funds expended in the Commonwealth from state or local authority funds, excluding funds derived as compensation for goods or services provided under a competitively bid contract. KRS 61.870(1)(h). If the private entity in fact derives at least 25% of the funds it expends in the Commonwealth from nonexcluded state or local authority funds, it is accountable through its records only if the records relate "to functions, activities, programs, or operations funded by state or local authority." KRS 61.870(2).