Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find no evidence establishing that 21st Century Parks, Inc. ("21st Century"), a private nonprofit corporation, meets the definition of a "public agency" under KRS 61.870(1)(h). Accordingly, it is not obligated to afford Teena Halbig access to records responsive to her August 23, 2018, request for "a copy of any agreement(s) pertaining to 6510 Echo Trail, Louisville, Ky 40299-5103 between Future Fund Endowment or The Future Fund, Inc. and 21st Century Parks, Inc., or 21st Century Parks Endowment; or 21st Century Parklands/Parklands of Floyds Fork; or Main Street Realty, etc."
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. Halbig alleges as follows with regard to 21st Century Parks:
District 20 Metro Councilman said it cost $ 600,000.00 of the public's money to run water and sewer to one of the buildings under the control of the company, Floyds Fork Fields Building. Earlier, District 20 Councilman used $ 50,000.00 of public money toward the building.
. . . .
An initial 2005 federal Congressional earmark of $ 38 million to create.
2008 Financially supported by the Federal Highway Administration and Kentucky Transportation Cabinet
$ 50 million from federal, state and local government sources per Sept. 6, 2016 announcement
(Emphasis omitted.)
21st Century asserts, however, that it does not derive 25% of its funds from state or local government authority funds. It refers to its tax returns from 2015, 2016, and 2017, available on its website. 1 On its Form 990 for 2017, in Part VIII, 21st Century indicates that it received "Government grants (contributions)" of $ 37,551 out of a total revenue of $ 4,183,136. Similarly, in 2016, the Form 990 indicates government contributions of $ 77,953 out of a total $ 3,041,035 in revenue. Both of these figures are well below the 25% threshold in KRS 61.870(1)(h).
The Form 990 for 2015 indicates government contributions of $ 2,078,127 out of a total $ 6,292,460, amounting to 33% of its revenue for that year. It does not, however, indicate how much of that money was federal versus state or local (and, in any case, the amount stated does not resemble the $ 50,000,000 figure alleged by Ms. Halbig). In short, there is insufficient reliable evidence in the record to counter 21st Century's assertion that it does not derive at least 25% of its funds expended in the Commonwealth of Kentucky from state and local authority funds.
Ms. Halbig's assertion that 21st Century uses a building, and water and sewer lines, constructed with public funds, does not equate to deriving funds from state or local government. In 13-ORD-105 (copy attached), we held that "funds" as used in KRS 61.870(1)(h) refers only to the receipt of money, not to the receipt of "services" or merely "anything of value." We adopt the reasoning of 13-ORD-105 as part of the basis for our decision in this appeal, and accordingly find no adequate basis in the record to consider 21st Century a "public agency" subject to the Kentucky Open Records Act. See also 09-ORD-033; 11-ORD-197.
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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