19-ORD-229
December 18, 2019
In re: Rev. Russell Claxon/Green and Orange Cab Company
Summary:
Green and Orange Cab Company is not a “public
agency” as defined by KRS 61.870(1)(h) and is not subject to the
Open Records Act (“the Act”). Therefore, the Attorney General
finds no violation of the Act.
Open Records Decision
On September 26, 2019, Rev. Russell Claxon (“Appellant”) requested
certain records from the Green and Orange Cab Company (“Company”) relating
to its business license, its taxi license, the identity of its drivers, and any public
complaints lodged against the Company or its drivers. Appellant also requested
from the Company, “your contract with FTSB1 and/or the state of Kentucky,”
and “[a]ll records of payments made to your company within the last 5 years.”
Having received no response to his initial request, Appellant mailed a
follow-up letter to the Company on October 15, 2019, but received no response.
On October 29, 2019, Appellant mailed a second follow-up letter to the
Company, but received no response. On November 12, 2019, Appellant appealed
the apparent denial of his requests to this Office, stating that the Company
“provides transport for Medicaid members to their medical appointments.”
1 “FTSB” is the abbreviation for Federated Transportation Services of the Bluegrass, Inc. FTSB is
a private non-profit corporation that provides public transportation and Medicaid broker services
for thirteen counties in the Commonwealth of Kentucky. http://ftsb.org/ (last visited December
4, 2019).Appellant argued that the Company and its owners have contracts with FTSB
and the Commonwealth of Kentucky to provide transportation services to
Medicaid recipients. Appellant argued, “[s]ince [the Company] and Owners
receive state funds and tax money [the Company] and the Owners are bound to
provide documents.” However, Appellant provided no evidence that the
Company or its owners have contracts with FTSB or the Commonwealth of
Kentucky.
Analysis: Appellant argued that the Company meets the definition of a
“public agency,” because it derives funds from providing services to Medicaid
recipients, or alternatively because it derives funds from a contract with the
Commonwealth to provide services, and is therefore subject to the requirements
of the Act. However, KRS 61.870(1)(h) 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[.]
This Office has consistently recognized that a private company comes within the
purview of the Act only if it derives at least 25% of its funds from state or local
authority funds and otherwise does not fall within the definition of a “public
agency” pursuant to KRS 61.870(1)(a)-(k). OAG 90-63; 06-ORD-275.
The Company failed to respond to this Office’s notification of appeal
dated November 18, 2019, and the burden of proof in these appeals is assigned to
the agency resisting disclosure. KRS 61.880(2)(c). However, the record on appeal
does not support Appellant’s claim that the Company is a “public agency” for
purposes of the Act. As such, the Company carries no burden of proof.
No evidence exists in the record showing that the Company provides
services to Medicaid recipients under a contract with FTSB or the
Commonwealth of Kentucky. Even if Appellant had provided this evidence, thisOffice has found that Medicare and Medicaid funds do not constitute “state or
local authority funds” in determining whether an entity meets the definition of a
“public agency” pursuant to KRS 61.870(1)(h). In 93-ORD-90, this Office found
that a radiology practice owned by a private physician was not a “public agency”
for purposes of the Act simply because it was compensated through Medicare
and Medicaid for professional services rendered to patients. The Attorney
General reasoned that, merely because private physicians receive state or public
funds as reimbursement for their services, they do not become “public agencies,”
as “they would be discouraged from serving senior citizens and the poor, who
benefit from the Medicare and Medicaid programs.” Id., pp. 9-10. Accordingly,
Medicare and Medicaid funds do not constitute “state or local authority funds”
in determining whether an entity receives 25% or more of its funds from public
coffers. Id., p. 10.
Finally, KRS 61.878(1)(h) specifically exempts companies that receive “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” from the definition of “public agency”. The record
contains no evidence the Company is a party to a public competitive
procurement contract with the Commonwealth, but even if it did, KRS
61.878(1)(h) is clear that the contract would not transform the private company
into a public agency.
The record on appeal does not support Appellant’s claim that the
Company is a “public agency” within the meaning of KRS 61.878(1)(h).
Accordingly, the Company is not subject to the requirements of the Act and
cannot be found in violation.
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.Daniel Cameron
Attorney General
J. Marcus Jones
Assistant Attorney General
#452
Distributed to:
Rev. Russell Claxon
Asif Rehman