Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Summary : T.J. Samson Community Hospital is not a "public agency" subject to the Open Records Act and so did not violate the Act by not responding to an open records request.
Open Records Decision
The issue presented in this appeal is whether T.J. Samson Community Hospital ("Hospital") violated the Open Records Act in declining to comply with an open records request. For the reasons stated below, we find that the Hospital did not violate the Act.
In his March 3, 2017, request to the Hospital, Larry Forman requested certain records regarding the Hospital's policies and procedures, and information about the Hospital's insurance carrier and insurance policy. According to Mr. Forman, the Hospital's counsel, Phillips Parker Oberson & Arnett, PLC, answered his request by saying that no response would be provided to the request for records. Having received no other response, Mr. Forman filed this open records appeal by letter dated October 3, 2017.
Hon. M. David Thompson, Phillips Parker Oberson & Arnett, PLC, counsel for the Hospital, responded to the appeal by letter dated October 16, 2017. Mr. Thompson addressed whether the Hospital is a public agency pursuant to KRS 61.870(1)(h) by explaining that the Hospital is a private entity "organized under the laws of the Commonwealth of Kentucky to provide medical services to the public for compensation." Mr. Thompson's letter continued:
The Attorney General has already determined that KRS § 61.870(1)(h) was not intended to apply to private healthcare providers and hospitals who receive compensation for their services. See 93-ORD-90 and 00-ORD-91. The Attorney General has further held that Medicare and Medicaid funds do not constitute "state or local funds" in determining whether an entity receives 25% or more of its funds from public coffers. Id. Therefore, TJSCH does not fall within [the] definition of a "public agency" pursuant to KRS § 61.870(1)(h), and it is not subject to any Open Records Requests under § 61.880(2)(a).
The issue presented in this appeal is whether the Hospital is a "public agency" for purposes of the Open Records Act. Mr. Forman's letter of appeal claims that the Hospital is a public agency under KRS 61.870(1)(h). That statute, as amended in 2012 1, provides:
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 [.]
Mr. Forman provided no facts or documentation to support his claim that the Hospital is a public agency. For the reasons that follow, we conclude that the Hospital is not a public agency within the meaning of KRS 61.870(1)(h), and is not subject to the Act.
Mr. Thompson explained, in his response to the letter of appeal, that the Hospital is a private non-profit corporation. He referenced our earlier decisions in 93-ORD-90 and 00-ORD-91 where we held that Medicare and Medicaid funds do not constitute "state or local funds" in determining whether an entity receives 25% or more of its funds from public coffers. "Therefore," Mr. Thompson concludes in his letter, "TJSCH does not fall within [the] definition of a 'public agency' pursuant to KRS § 61.870(1)(h), and it is not subject to any Open Records Request under § 61.880(2)(a)."
This office has consistently recognized that a private corporation comes within the purview of the Open Records Act only if it derives at least 25% of its funds from state or local authority funds. 92-ORD-1114; OAG 88-61. Those opinions were premised on the definition of "public agency" set out in KRS 61.870(1)(h). In 92-ORD-1114, we addressed whether T.J. Samson Community Hospital was subject to the Open Records Act. In that decision, this Office determined that the Hospital was not subject to the Open Records Act as it did not receive "at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." Mr. Thompson's letter explains that the Hospital, just as in the 1992 appeal, does not derive twenty-five percent (25%) of its funds, expended by it in the Commonwealth of Kentucky, from state or local authority funds. Pursuant to KRS 61.880(2)(c), this Office requested additional documentation to support the Hospital's claim that it does not currently meet the definition of a public agency. In compliance with that request, the Hospital provided the affidavit, dated October 30, 2017, of Gavin Noffsinger, In-house legal counsel for the Hospital. Mr. Noffsinger stated that he had reviewed the financial records of the Hospital for the year ending December 31, 2016, and that, based on his knowledge of those records, the Hospital "does not derive at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds."
Based on the record of this appeal, we conclude that the Hospital is not a "public agency" within the meaning of KRS 61.870(1)(h), is not subject to the Open Records Act, and cannot be required to release its records under the Act. 93-ORD-127.
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.
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