Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether College Heights Apartments ("CHA") in Barbourville, Kentucky, violated the Kentucky Open Records Act in the disposition of attorney Melissa L. Tidwell's June 4, 2018, request to view its file on her client Linda Jordan. Since CHA failed to respond in writing to the request within the time period provided by KRS 61.880(1), we find that it violated the Act if it is a "public agency" under KRS 61.870(1)(h).
KRS 61.870(1)(h) defines a "public agency" subject to the Open Records Act as "[a]ny 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," excluding funds derived from a contract obtained through a competitive procurement process. Ms. Tidwell alleges that CHA is a project-based Section 8 subsidized housing development that receives more than 25% of its funding from state or local authorities. A directory spreadsheet of "Assisted Rental Housing in Kentucky" 1 available on the Kentucky Housing Corporation's website confirms that CHA is project-based Section 8 housing.
A project-based Section 8 housing development is a public agency if it derives at least 25% of its funds expended in Kentucky from state or local authority sources, including federal HUD funding received through the Kentucky Housing Corporation. 13-ORD-154. As CHA has not responded to Ms. Tidwell's appeal, we are unable to determine conclusively from the record whether CHA meets this 25% threshold. If it does meet the threshold, however, CHA was a public agency obligated under KRS 61.880(1) to respond in writing to Ms. Tidwell's request for records within three days, excluding Saturdays, Sundays, and legal holidays. In that case, its failure to issue a timely response would constitute a violation of the Open Records Act. Furthermore, since CHA has asserted no exceptions under KRS 61.878 to the duty to disclose public records, it has not met its burden of proof under KRS 61.880(2)(c), and we therefore find a substantive violation of KRS 61.872(1), contingent on CHA's status as a public agency.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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