Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Leonel Martinez appeals MPD, Inc.'s, response to his December 28, 2015, request for access to "the same video that was given to the Police on March 23, 2006, at 12:30 P.M." MPD, Inc., promptly denied Mr. Martinez's request, advising him that it "no longer has a copy of the requested video. " Mr. Martinez subsequently initiated this open records appeal.
In supplemental correspondence directed to this office, MPD, Inc.'s, Vice-President explained that MPD is "a private, for profit corporation (100% owned by the MPD, Inc. ESOP Plan and Trust) and receives no funds from state or local public agencies or authorities and otherwise does not come within the definition of a 'public agency' under KRS 61.870(1) for purposes of Kentucky's Open Records Act (KRS 61.870, et seq.)." Unable to resolve the question on appeal with the information provided, on March 14, 2016, this office requested additional documentation from MPD, Inc., pursuant to KRS 61.880(2)(c), 1 to substantiate its position. MPD readily complied with our request, explaining:
1. MPD is a Kentucky for profit company wholly owned by its Employee Stock Ownership Plan and Trust (the "ESOP").
2. MPD in turn is the sole parent of various wholly owned subsidiaries some of whom do business and contract with state and/or local governments for goods and services (the "MPD Affiliates").
3. However, MPD, independent of the MPD Affiliates, does no business with and receives no direct funds from state or local agencies or authorities and thus does not come within the definition of a "public agency" under KRS 61.870(1)(h).
4. Further, the video in question was owned and maintained by MPD and was neither paid for nor funded by any state or local funds. Accordingly, such video does not constitute a "public record" under KRS 61.870(2).
Mr. Martinez thereafter challenged MPD's position, asserting that receipt of state or local authority funds, whether directly or indirectly, renders MPD a public agency for purposes of open records analysis.
Mr. Martinez is in error. KRS 61.870(1)(h), the only definition found in KRS 61.870(1)(a) through (k) that even arguably applies to MPD, defines "public agency" as:
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[.]
This definition of the term "public agency" underwent significant revision in 2012 with the addition of the phrase "within any fiscal year" in the first sentence, and, more important for our analysis, the addition of the second sentence. The net effect of the latter amendment was to exclude "funds derived from a state or local authority in compensation for goods or services that are provided by a contract obtained through a competitive procurement process" from the twenty-five percent funding calculation. MPD acknowledges that some of its subsidiaries "do business and contract with state and/or local governments for goods and services," but these funds, whether directly or indirectly deposited in MPD accounts, are excluded from MPD's, and its subsidiaries', KRS 61.870(1)(h) calculations. Simply stated, neither MPD nor its subsidiaries constitute public agencies for open records purposes since the state or local authority funds are derived in compensation for goods and services under competitively bid contracts. Accord, 16-ORD-041 (private company that receives no state or local authority funds is not a public agency and, therefore, not subject to the Open Records Act).
Assuming, for the sake of argument, that the state or local authority funds obtained by MPD's subsidiaries under contract for goods and services were not excluded by the 2012 amendment to KRS 61.870(1)(h) from the twenty-five percent calculation, we note that the disputed record, a videotape generated by MPD security cameras in 2006, was not "related to functions, activities, programs, or operations funded by state or local authority. " 2 MPD generated the video at its own cost for security purposes, and the video does not fall within the definition of the term "public record. " 3 Mr. Martinez has filed a second appeal arising from his January 26, 2016, request to the Owensboro Police Department for a copy of the videotape that was turned over to it by MPD, Inc., for investigative purposes in 2006. That appeal, open records log number 201600115, awaits final resolution.
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 KRS 61.880(2)(c) states:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation . The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
2 Because it is not a public agency, for purposes of open records analysis, MPD is not subject to records retention requirements for felony investigative files found in the General Schedule for Local Governments at Records Series L4662 (eighty years) or L5846 (permanent). The schedule containing these records series is incorporated by reference into regulation at 725 KAR 1:061 Section 2(x).
3 KRS 61.870(2) defines "public record" as:
"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[.]