Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Dismas Charities, Inc. ("Dismas") violated the Kentucky Open Records Act in failing to respond to Carlton Freeman, Jr.'s requests for numerous records. Specifically, the question presented is whether Dismas, a "private, non-stock, not-for-profit national provider of community corrections and social services," 1 is a "public agency" for purposes of the Open Records Act. Resolution of this issue, as in 09-ORD-085 (Howard Cobb/Dismas Charities, Inc.), turns on the application of KRS 61.870(1)(h) , as reinterpreted in 09-ORD-033, to Dismas. 2 Because the evidence presented again establishes that Dismas does not derive at least twenty-five percent (25%) of the funds it expends in the Commonwealth of Kentucky from state or local authority funds, and it therefore does not fall within the parameters of KRS 61.870(1)(h), nor does it otherwise qualify as a "public agency" within the meaning of KRS 61.870(1), this office finds that Dismas is not subject to, and therefore cannot be said to have violated the provisions of the Act.
Mr. Carlton Freeman, an inmate at Roederer Correctional Complex, appealed two requests 3 that he had allegedly made to Dismas on or about December 27th or 28th, 2016. There is no record of whether Dismas Charities received the requests, but as resolution in this matter turns upon whether Dismas is a "public agency" for the purposes of the Open Records Act, we shall not address that issue. Upon receiving notification of Mr. Freeman's appeal from this office, Ian T. Ramsey, Stites & Harbison PLLC, responded on behalf of Dismas, initially noting that the Office of the Attorney General previously found that Dismas was not a public agency under KRS 61.870(1)(h). As Mr. Ramsey correctly observed, in 02-ORD-119, this office "found that Dismas 'is not a public agency within the meaning of KRS 61.870(1) and therefore has no obligations under the Act.' On April 12, 2006, 06-ORD-077 was issued arriving at the same conclusion." More recently, he continued, this office reevaluated its previous interpretation of KRS 61.870(1)(h), 4 holding that a proper interpretation of KRS 61.870(1)(h) requires consideration of "'the amount of state or local authority funds expended by the 'body' in the Commonwealth of Kentucky." 09-ORD-033, p. 9. Applying this revised standard to Dismas, 5 Mr. Ramsey explained, in 09-ORD-085 this office again determined that Dismas was not a public agency within the meaning of KRS 61.870(1)(h) , and that determination was affirmed again in 11-ORD-109.
In 09-ORD-033, as previously indicated, this office reevaluated its position regarding application of KRS 61.870(1)(h) and modified it as needed in order to fully effectuate the legislative intent. 6 Having done so, this office then looked "to the amount of state or local authority funds expended by the 'body' in the Commonwealth as well as the amount of funds derived from state or local authorities. " Id., p. 9 (original emphasis). 7
In 09-ORD-085, the then CFO of Dismas, Mr. Steve Clark, advised this office that for the year ending December 31, 2008, Dismas only derived 21.8% of the funds it expended in the Commonwealth from state or local authority funds; accordingly, this office found that Dismas did not satisfy the statutory threshold of twenty-five percent (25%) codified at KRS 61.870(1)(h) and thus could not be said to have violated the Act. Following the example of that earlier Open Records Decision, Mr. Ramsey provided the affidavit of Adam T. Conlin, Chief Financial Officer for Dismas, to assist this office in the determination of whether Dismas now meets the definition of a public agency for the purposes of the Open Records Act. Mr. Conlin's affidavit confirms that he "reviewed the financial records of Dismas for the year ending December 31, 2016" and "[b]ased on [his] review of these records, [he has] calculated that of the funds expended by Dismas in the Commonwealth of Kentucky for the year ending December 31, 2016, 13.5% are derived from Kentucky state or local authorities. " Inasmuch as Dismas has established that only 13.5% of the funds it expended in the Commonwealth were derived from state or local authority funds in 2016, this office must reach the same conclusion here as in 09-ORD-085. Because Dismas is not a "public agency" within the meaning of KRS 61.870(1)(h), 8 it cannot be said to have violated the Open Records Act relative to Mr. Freeman's request.
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 must 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 02-ORD-119, p. 1.
2 KRS 61.870(1)(h) was amended on April 4, 2012, after the issuance of 09-ORD-033, to include the following: "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." Therefore "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" must be eliminated from the determination of whether a "body" is a "public agency." That amendment did not alter the analysis of 09-ORD-033, under the facts presented in this appeal, of whether Dismas is a public agency.
3 The two requests were: "Would you please give me my computer files and all records and a copy of my release papers from Kentucky State Penitentiary from Dismas Charities St. Patrick halfway house. All video and audiotapes from 06/25/16 to 8/1/16. All logs from 06/25/16 to 8/1/16. All employee employment records. All drug test from employees from 1996. All criminal history records and metal records from employees from 1996 till now. All financial records from all Dismas Charities, Inc. from 1996. And all files on Carlton Freeman from 06/25/16 to 8/1/16 hereof. [sic]" And,"Would you please give me all of my information from Dismas Charities St. Patrick off 1301 West Market St. Louisville, Ky 40203. The info that I am asking is all of my computer files and all files from Dismas. My released papers from Kentucky State Penitentiary that was giving to the Director at Dismas Charities St. Patrick & Ms. Yvette McCollum. Also, I would like all audio & video tapes from 06/25/16 to 8/1/16 at Dismas Charities St. Patrick at 1301, W. Market Street. And all employee records from 1996. All drug test done, criminal records and all employment records, and I will need all financial records from all Dismas Charities inc. from 1996, plus, all history of Dismas Charities Churchs, all history of the church off 1301 W. Market St. Louisville, Ky 40203 and all metal records as well. [sic]"
4 In so doing, this office noted that in Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008), the Kentucky Supreme Court expressly recognized the prerogative of the Attorney General to depart from precedent when the circumstances warrant doing so, declaring that the "Attorney General was permitted to reexamine -- and even reject -- its former interpretation of the law."
5 09-ORD-033 was appealed to the Jefferson Circuit Court. In William W. Chilton, III v. M.A. Mortenson Company , No. 09-CI-02749 (Jefferson Circuit Court -- Division 13, November 24, 2009), the Court granted M.A. Mortenson's motion to dismiss, agreeing "that the lack of any time period within which the expenditure-to-public fund percentage is to be measured renders KRS 61.870(1)(h)" unconstitutional. In the absence of a published opinion by the Kentucky Supreme Court or the Kentucky Court of Appeals finding KRS 61.878(1)(h) unconstitutional, this office is compelled to continue applying that provision as written.
6 09-ORD-033 admittedly represented a "significant departure from prior decisions in which the 'expended by it in the Commonwealth' language" found in KRS 61.870(1)(h) "was not meaningfully applied." Id., p. 6. The Attorney General reversed that line of decisions, finding that KRS 61.870(1)(h) "must be construed in a manner that gives full legal effect" to the apparent legislative intent. Id., p. 9.
7 In 09-ORD-033, this office acknowledged that "[t]he absence of specific parameters within KRS 61.870(1)(h) has impeded our ability to effectively implement the apparent legislative intent." This includes the failure to "fix the period within which this determination [is] to be made (calendar year, fiscal year, calendar or fiscal year to date of request)." Because Dismas can only furnish this office with a percentage from the most recent year in which the amount of state or local authority funds expended in the Commonwealth can be calculated, to wit, 2016, this office must accept the figures provided in determining its status.
8 Mr. Conlin's affidavit did not state whether any of the funds expended by it in the Commonwealth were "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." As only 13.5% of the funds expended by Dismas in the Commonwealth, for the year ending December 31, 2016, were derived from a state or local authority, it is not necessary to determine what portion of that 13.5% may have been derived through the public competitive procurement process. Such funds, if any, could only further decrease the percentage of funds that would determine whether Dismas is a "public agency." The 13.5% stated by Mr. Conlin is already less than the threshold 25%, and so there is no need to consider further reductions to that 13.5% amount.