24-ORD-198
September 17, 2024
In re: Jeffrey Jobe/Bridge Kentucky, Inc.
Summary: Bridge Kentucky, Inc. (“Bridge”) is a public agency subject
to the Open Records Act (“the Act”) that must produce nonexempt,
responsive records from fiscal years in which it meets the
KRS 61.870(1)(h) definition of a public agency. Accordingly, it violated
the Act when it failed to appropriately respond to a request to inspect
records within five business days of receiving it. Bridge did not violate
the Act when it did not provide records that are not “public records”
under KRS 61.870(2). Bridge did not violate the Act when it did not
provide records it does not possess. Bridge did not violate the Act when
it denied a request seeking information without describing any public
records to be inspected.
Open Records Decision
On August 5, 2024, Jeffrey Jobe (“Appellant”), submitted a request to Bridge
to inspect various records.1 On August 7, 2024, Bridge responded and stated that it
is “researching whether [it is] still subject to” the Act and, [a]ccordingly, we need more
time to respond to the request.” On August 19, 2024, having received no further
response, the Appellant initiated this appeal.
As an initial matter, the Office must determine whether Bridge is a “public
agency” subject to the Act. Bridge is a private, nonprofit organization. A private
1
Specifically, the Appellant sought “Copies of [Bridge’s] Bylaws. Original and current if changed”;
“Copies of minutes for each for each board meetings [sic] from August 2022, through August 2024.
These . . . include bank statement audits”; “a[n]y communications of [two individuals] involving
questions regarding needs for audits”; and “Board members by year since [sic] for . . . 2022, 2023, and
2024.”organization, however, is deemed to be a “public agency” for purposes of the Act if
“within any fiscal year, [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.” KRS 61.870(1)(h). Bridge admits it was a “public agency” under
KRS 61.870(1)(h) prior to fiscal year 2025.2 The Appellant claims Bridge has been a
“public agency” since its inception in fiscal year 2020. Bridge does not contest the
Appellant’s assertion regarding it having been a “public agency” since fiscal year
2020. Thus, absent any evidence to the contrary, the Office concludes that Bridge
qualifies as a “public agency” under KRS 61.870(1)(h) for fiscal years 2020 through
2024.
However, Bridge asserts it is not a “public agency” for fiscal year 2025.
According to Bridge, “changes were made within the organization and it now receives
only minimal funding from state or local authorities.” For its part, the Appellant
asserts that “nearly all of Bridge’s funding was provided by [a] School Board,” and
“[w]hatever assets Bridge retains were obtained through its Agreement with the
School Board.” However, neither Bridge nor the Appellant provides an estimate of
funds expended by Bridge in the Commonwealth for fiscal year 2025. Even accepting
as true the Appellant’s assertion that all of Bridge’s assets were obtained from the
school board, without knowing the amount of funds expended by Bridge in fiscal year
2025, the Office cannot find that Bridge qualifies as a “public agency” under
KRS 61.870(1)(h) for fiscal year 2025.
However, Bridge asserts that because it is not a “public agency” for fiscal year
2025, it is not bound by the Act. Rather, Bridge maintains that “once a private entity
ceases to meet the 25% threshold, it is no longer required” to comply with the Act and
is only bound to do so “during the year(s) in which the private entity satisfied the 25%
threshold requirement.”
Bridge’s proposed interpretation, however, is not supported by the text of the
statute. And the “the text of the statute is supreme.” Owen v. Univ. of Ky., 486 S.W.3d
266, 270 (Ky. 2016) (citing Scalia & Garner, Reading Law 56 (2012)). Moreover,
“nothing requires a statute’s subsection to be read in a vacuum rather than in the
context of the entire statute.” Chrysalis House, Inc. v. Tackett, 283 S.W.3d 671, 674
(Ky. 2009). As the Kentucky Supreme Court has stated:
In construing statutes, our goal, of course, is to give effect to the intent
of the General Assembly. We derive that intent, if at all possible, from
the language the General Assembly chose, either as defined by the
General Assembly or as generally understood in the context of the
2
The Commonwealth’s fiscal year begins on July 1 and ends on June 30 of the following calendar
year. See Ky. Const. § 169. Accordingly, July 1, 2023, and June 30, 2024, marked the beginning and
end of fiscal year 2024, respectively.matter under consideration. We presume that the General Assembly
intended for the statute to be construed as a whole, for all of its parts to
have meaning, and for it to harmonize with related statutes. We also
presume that the General Assembly did not intend an absurd statute or
an unconstitutional one.
Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) (citations
omitted).
Under KRS 61.870(1)(h), examination of whether 25% of the funds the private
entity expends comes from state or local funds looks at the private entity’s finances
“within any fiscal year” (emphasis added). Further, the Supreme Court has stated
that the “logical interpretation [of KRS 61.870(1)(h) is] that if the records sought are
for a fiscal year in which the 25% threshold is met, there is an obligation to produce.”
Util. Mgmt Grp., LLC v. Pike Cnty. Fiscal Court, 531 S.W.3d 3, 11 (Ky. 2017).
Moreover, pursuant to the “any fiscal year” language, the Office has previously held
that a private entity can qualify as a public agency under KRS 61.870(1)(h) in some
years but not in others. See e.g., 23-ORD-070 n.2 (“[A] determination that a private
entity meets the threshold in one fiscal year does not mean that it meets the threshold
in another fiscal year”); 09-ORD-192 (finding a private entity was a “public agency”
under KRS 61.870(1)(h) in fiscal year 2008, but not in fiscal year 2009). Simply put,
the use of “any” in the statute suggest that there are multiple years in which a private
entity can be a “public agency” under the Act. See Pearce v. Univ. of Louisville, 448
S.W.3d 746, 753 (Ky. 2014) (finding that, “[i]n context, it is clear that the term ‘any’
is used synonymously with the term ‘all’”).3
This conclusion is supported by the legislative history of KRS 61.870(1)(h).
Prior to July 1, 2012, KRS 61.870(1)(h) defined public agency to mean “[a]ny body
which derives at least twenty-five percent (25%) of its fund expended by it in the
Commonwealth of Kentucky from state or local authority funds.” During the 2012
Regular Session, the General Assembly passed House Bill 496 to amend
KRS 61.870(1)(h). The amendment added the timeframe of “any fiscal year” for
assessing the 25% expenditure threshold. Notably here, the original version of the
bill would have added the language “the current fiscal year.” A House Committee
Substitute removed that language of favor of the “any fiscal year” language. The
3
Consider also a public record created by an entity that met the KRS 61.878(1)(h) definition of
“public agency.” The General Assembly has declared “that the basic policy of [the Act] is that free and
open examination of public records is in the public interest.” Thus, the Office has long held that
“wherever public funds go, public interest follows.” OAG 76-648. Under Bridge’s construction, a private
entity could take public funds such that it becomes subject to the Act but can then opt out of the
requirements of the Act within a year by taking no additional public funds. But the public’s interest
or right to inspect public records related to that distribution of public funds does not dissolve because
the private entity has ceased receiving public funds.original “current fiscal year” language would support Bridge’s proposed
interpretation, but the General Assembly’s rejection of that language suggests the
General Assembly did not intend for the definition of public agency in
KRS 61.870(1)(h) to be limited to only the fiscal year in which a request was made.
At bottom, “if the records sought are for a fiscal year in which the 25%
threshold is met, there is an obligation to produce.” Util. Mgmt Grp., 531 S.W.3d at
11. Here, Bridge met the KRS 61.870(1)(h) definition of a public agency in fiscal years
2020 through 2024. Accordingly, Bridge is obligated under the Act to produce records
from those fiscal years.
When a “public agency” receives a request under the Act, it must determine
within five business days whether to grant or deny it and notify the requester of its
decision. KRS 61.880(1). If the public agency denies any portion of the request, it
must also cite the exemption authorizing the denial and briefly explain how it applies
to records withheld. Id. Or, if the records are “in active use, in storage or not otherwise
available,” the public agency may delay access to the records if it gives the requester
“a detailed explanation of the cause . . . for further delay and the place, time, and
earliest date on which the public record[s] will be available for inspection.”
KRS 61.872(5). Here, Bridge received the Appellant’s request on August 5, 2024, and
stated it was “researching whether [it is] still subject to” the Act and, “[a]ccordingly,
[it] need[s] more time to respond to the request.” Bridge asserts that because it
informed the Appellant that it needed more time to respond to the request, it did not
violate KRS 61.880(1). But Bridge did not determine within five business days
whether to grant the request, deny it, or invoke KRS 61.872(5) to delay the
Appellant’s inspection of the requested records. Accordingly, Bridge violated the Act
when it failed to respond appropriately to the Appellant’s request.
Although the Office has determined that Bridge is still a “public agency”
obligated to produce records from fiscal years 2020 through 2024, not all its records
are “public records” subject to inspection. KRS 61.870(2) broadly defines “public
records,” but it excludes from that definition “any records owned or maintained by or
for a body referred to in [KRS 61.870(1)(h)] that are not related to functions,
activities, programs, or operations funded by state or local authority.” Regarding the
Appellant’s request for its bylaws, Bridge asserts that its bylaws were created and
adopted when it was created, “before it accepted any funding from state or local
entities.” The Office has previously reasoned that “records relating to the [Agency’s]
‘functions, activities, programs, or operations funded by’ [state or local funds] likely
would not have been created until after the expenditure was made.” 23-ORD-070.
Here, Bridge’s bylaws, created before it received “state or local funds” are not records
related to Bridge’s “functions, activities, programs, or operations funded by state or
local authority.” Thus, they are not “public records,” and therefore, are not subject toinspection. See KRS 61.872(1) (granting Kentucky residents the right to inspect
“public records”).
Regarding the request for the board’s minutes, Bridge admits that “to the
extent there are meeting minutes discuss[ing] programs or functions funded by
governmental funds, then presumably these minutes would be subject to disclosure.”
But Bridge asserts that it may “redact any non-governmental funded discussions
from the minutes.” See KRS 61.878(4) (“If any public record contains material which
is not excepted under this section, the public agency shall separate the excepted and
make the nonexcepted material available for examination.”). As discussed above,
records that not related to Bridge’s “functions, activities, programs, or operations
funded by state or local authority” are not “public records,” and therefore, are not
subject to inspection. Accordingly, such portions of meeting minutes may be
redacted.4
Regarding the Appellant’s request for audits or communications by two
individuals “involving questions regarding needs for audits” Bridge states that it does
not possess any responsive records. Once a public agency states affirmatively that a
record does not exist, the burden shifts to the requester to present a prima facie case
that the requested record does or should exist. See Bowling v. Lexington–Fayette Urb.
Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the requester makes a prima facie case
that the records do or should exist, then the public agency “may also be called upon
to prove that its search was adequate.” City of Fort Thomas v. Cincinnati Enquirer,
406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling, 172 S.W.3d at 341). Here, the
Appellant has not made a prima facie case that the audits or the two individuals’
communications exist. Accordingly, Bridge did not violate the Act when it did not
provide records it does not possess.
Regarding the request for Bridge’s “Board members by year” for 2022, 2023,
and 2024, Bridge argues it is “more in the form of an [i]nterrogatory than a request
for an existing document.” The Appellant’s request seeks the identity of Bridge’s
board members in certain years. This request did not describe public records to be
inspected, but rather, seeks information. See, e.g., 23-ORD-257 (requester asked for
“the full names” of correctional officers on duty at a specific time); 22-ORD-054
(requester asked “who ordered” a letter to be written, how much the author was paid,
and “why” the letter “was circulated”). The Act does not require public agencies to
4
Regarding Bridge’s assertion that it will “take time to review and redact the minutes to comply
with the request,” the Office again notes that Bridge has not invoked KRS 61.872(5) to delay the
Appellant’s inspection of the requested records or explain why a delay is necessary. Thus, to the extent
responsive minutes that meet the definition of “public record” under KRS 61.870(2) exist, Bridge
violated the act when it did not determine within five business days whether to produce the minutes,
or invoke KRS 61.872(5) to delay the Appellant’s inspection of them.answer interrogatories or fulfill requests for information. Rather, it only requires
public agencies to produce public records for inspection. See KRS 61.872(2)(a)
(requiring a request to inspect records to include, inter alia, a description of “the
records to be inspected”); Dep’t of Revenue v. Eifler, 436 S.W.3d 530, 534 (Ky. App.
2013) (“The [Act] does not dictate that public agencies must gather and
supply information not regularly kept as part of its records.”). Accordingly, Bridge did
not violate the Act when it denied the Appellant’s request because it did not describe
any public records to be inspected.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#349
Distributed to:
Michael P. Abate
Brian K. Pack