Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Royalton Trail Town, Inc. ("RTT") violated the Open Records Act in its disposition of an open records request submitted to RTT for corporate records and information. For the reasons stated below, we find that RTT did not violate the Act.
By letter dated August 6, 2018, the Royalton Community Oversight Council 1 ("Council") made the following requests to RTT:
1. A list of all current board members for the Royalton Trail Town, Inc. How the board members were appointed/ elected.
2. A copy of the current By-laws that the Royalton Trail Town, Inc. is operating under.
3. A copy of canceled checks and minutes approving spending of the $ 4,900.00 that was fund raised by the people of Royalton prior to February 2018.
4. Dates and time of meetings for Royalton Trail Town, Inc. Pursuant to KRS 61.800 to KRS 61.850.
Having received no response to the request, the Council appealed to our office in a letter signed by Marlene Howard and Larry Lanning.
Victoria Doucette, President, RTT, responded to the appeal and stated that RTT was a 501(c)3 entity 2, had not received any government funds, and was not subject to the Open Records Act. In order to clarify RTT's status as to whether it is a public agency subject to the Open Records Act, this office requested further information, pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, from RTT as to why it is not a public agency as defined at KRS 61.870(1). 3
RTT responded with an affidavit by Victoria Doucette, stating that RTT "has never received any state, federal or public monies that would be subject to any KRS open records act." In order to further clarify the status of RTT, we submitted additional questions to RTT, requesting whether it is a body created by state or local authority, and whether any members of RTT are appointed by state or local government. RTT responded to those questions in the negative. Additional questioning of RTT determined that it is a charitable organization that raises money through activities such as trail rides and numerous other fund-raising activities for the purpose of promoting the Dawkins Line Rail Trail 4 as a source of tourism and jobs.
Analysis : "Public agency" is broadly defined at KRS 61.870(1) in eleven different ways codified at subsections (a)-(k). No evidence has been presented to suggest that RTT would qualify as a public agency under KRS 61.870(1)(a), (b), (c), (d), (e), (f), (g), (j), or (k) 5. Likewise, 61.870(1)(i) is not applicable to RTT given that RTT has stated that its officers are not appointed by a public agency. Despite the expansive language of KRS 61.870(1), its companion, KRS 61.870(2) 6 (broadly defining "public records" ), and the clearly expressed legislative intent that the Open Records Act must be strictly construed so as to ensure the broadest possible access to public records, 7 the Attorney General has recognized, on a number of occasions, that a private corporation or company, whether not-for-profit or for-profit, is not a public agency for purposes of the Open Records Act unless it "derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds." See KRS 61.870(1) as construed in OAG 81-377; OAG 82-216; OAG 84-237; OAG 88-61; 92-ORD-1114; 94-ORD-98; 96-ORD-99; 97-ORD-114; 99-ORD-65; 05-ORD-012; 06-ORD-220; 08-ORD-024; 09-ORD-042; 11-ORD-040; 11-ORD-142; 12-ORD-010. Thus, KRS 61.870(1)(h) is the only subsection potentially applicable to RTT. That subsection defines a 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[.]
However, RTT has stated, by affidavit, that it has "never received any state, federal or public monies. . . ," (emphasis added), thus KRS 61.870(1)(h) does not apply.
The Council provided no facts, arguments, or theory as to how RTT qualifies as a public agency under the Open Records Act, and a review of the facts on appeal leads to the conclusion that neither RTT, or its officers, are subject to the Open Records Act as they do not meet the definition of a public agency. RTT did not violate the Act when it did not respond to the Council's request for records and information under the Act.
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 proceeding.
Footnotes
Footnotes
1 The record on appeal indicates that the Royalton Community Oversight Council may be an informal association of a number of persons as the records requests included signatures of 23 persons and there is no listing for such a business entity on the Secretary of State's website.
2 Section 501(c)(3) is the portion of the US Internal Revenue Code that allows for federal tax exemption of nonprofit organizations, specifically those that are considered public charities, private foundations or private operating foundations. It is regulated and administered by the US Department of Treasury through the Internal Revenue Service. https://www.501c3.org/what-is-a-501c3/ (last visited Dec. 27, 2018).
3 KRS 61.870(1) defines a "public agency" as:
(a) Every state or local government officer;
(b) Every state or local government department, division, bureau, board, commission, and authority;
(c) Every state or local legislative board, commission, committee, and officer;
(d) Every county and city governing body, council, school district board, special district board, and municipal corporation;
(e) Every state or local court or judicial agency;
(f) Every state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act;
(g) Any body created by state or local authority in any branch of government;
(h) 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;
(i) Any entity where the majority of its governing body is appointed by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof;
(j) Any board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection; and
(k) Any interagency body of two (2) or more public agencies where each public agency is defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (j) of this subsection[.]
4 The Dawkins Line Rail Trail is an 18-mile long trail built on top of rails from an out-of-use rail bed and is a recreational attraction for walkers, bicyclists and horseback riders. The trail follows the old Dawkins Line railroad bed that runs from Hagerhill to Evanston, KY. https://parks.ky.gov/parks/recreationparks/dawkins-line/ (Last visited Dec. 27, 2018).
5 Though not dispositive standing alone, information publicly available on the Secretary of State's website confirms that RTT is a "Kentucky Corporation," with "Active" status, in "Good" standing, whose principal office is located in Salyersville, Kentucky. By conventional indicia, in other words, RTT is a private business that is not subject to the Open Records Act unless it satisfies the KRS 61.870(1)(h) threshold . See 11-ORD-040; 11-ORD-142; 11-ORD-191.
6 KRS 61.870(2) states:
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[.]
7 KRS 61.871 states:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.