Opinion
Opinion By: Andy Beshear, Attorney General; Sarah Ellen Eads Adkins, Assistant Attorney General
Open Records Decision
William Epling initiated this appeal by letter dated September 18, 2019, challenging New Vista of the Bluegrass's (formerly Bluegrass.org) 1denial of his September 4, 2019, open records request. For the reasons that follow, we conclude that New Vista did not violate the Act.
In his request, Appellant asked for all past and planned budget item expenditures connected to [Bluegrass.org's] recent New Vista re-branding and marketing initiative" and related materials. New Vista responded on September 10, 2019, denying his request because New Vista is a private non-profit corporation not subject to the Open Records Act. Appellant initiated this open records appeal by letter dated September 18, 2019.
On September 26, 2019, New Vista responded through counsel. New Vista makes several arguments, most relevant of which is that it is not subject to the Open Records Act because it is not a "public agency" as defined in KRS 61.870.
KRS 61.870 defines public agency as applicable under the Open Records Act. A private nonprofit can be considered a public agency if it meets any definition KRS 61.870. Relevant in this analysis, KRS 61.870(h) holds that a public agency is "[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." This 25% does not include 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." Id. Alternatively, a public agency is an "entity where the majority of its governing body is appointed by a public agency." KRS 61.870(i).
First, New Vista included what portions of their budget are obtained from the Commonwealth. Per KRS 61.870(h), it appropriately excluded 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." However, it did include a contract with the Cabinet for Health and Family Services in in its calculations as it fell under neither of these exceptions. Per its response, New Vista received 12% of its funding from the Commonwealth of Kentucky, which is below the 25% threshold found in KRS 61.870(h). 2Mr. Epling does not dispute this calculation.
Second, New Vista responded that no member of their Board of Directors is appointed by any public agency, but the Board fills vacancies through its own nominating committee. Accordingly, New Vista can not be held to be a public agency according to KRS 61.870(i) because the "majority of its governing body" is not appointed by a public agency.
New Vista does not meet either of these definitions of a public agency within the meaning of the Open Records Act. Accordingly, we find that New Vista is not a public agency and it appropriately denied the open records 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 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.
Footnotes
Footnotes
1 Bluegrass.org recently change its name to New Vista of the Bluegrass, Inc. It will be referred to as New Vista in this decision.
2 New Vista also receives federal funding and excluded this funding in its calculation based on its interpretation of 97-ORD-65. However, even with the federal funding included in calculating the percentage of government funding, it does not reach the 25% threshold (no determination is made on whether this funding should have been included in its analysis).