24-ORD-224
October 15, 2024
In re: Nicole Smith/Jessamine County Board of Education
Summary: The Jessamine County Board of Education (“the Board”)
violated the Open Records Act (“the Act”) when it denied a request for
public records on the basis of residency when the requester stated the
manner in which she qualified as a resident of the Commonwealth under
KRS 61.870(10).
Open Records Decision
On August 7, 2024, Nicole Smith (“the Appellant”), on behalf of Acme Research
Institute of Kentucky LLC (“Acme”), submitted a request to the Board for certain data
regarding capital and operating expenditures during the 2024 fiscal year. In a timely
response, the Board denied the request because it contained no information about the
“Kentucky residency for Acme” or “the commercial purposes, if any, of the request.”
In reply, the Appellant described the commercial purposes of her request and asserted
that the request complied with the Act’s residency requirement in two ways. First,
she stated Acme was a “foreign business entity registered with the Secretary of State”
under KRS 61.870(10)(c). Second, the Appellant stated she was an “individual that is
employed and works at a location or locations within the Commonwealth” under
KRS 61.870(10)(a). Although she did not give her home address for privacy reasons,
the Appellant explained she worked from a “home office” located in Kentucky. In
response, the Board denied the request because Acme was a Kentucky corporation
with its principal office in Texas; therefore, the Board claimed Acme did not qualify
as a resident because it was not a “domestic business entity with a location in the
Commonwealth” under KRS 61.870(10)(b). This appeal followed.
Under KRS 61.872(2)(a), “[a]ny resident of the Commonwealth shall have the
right to inspect public records.” A public agency “may require the applicant to provide
a statement in the written application of the manner in which the applicant is a
resident of the Commonwealth under KRS 61.870(10)(a) to (f).” Id. “Resident of the
Commonwealth” is defined in KRS 61.870(10) as follows:(a) An individual residing in the Commonwealth;
(b) A domestic business entity with a location in the Commonwealth;
(c)
A foreign business entity registered with the Secretary of State;
(d) An individual that is employed and works at a location or locations
within the Commonwealth;
(e)
An individual or business entity that owns real property within the
Commonwealth;
(f)
Any individual or business entity that has been authorized to act
on behalf of an individual or business entity defined in paragraphs
(a) to (e) of this subsection; or
(g) A news-gathering organization as defined in KRS 189.635(9)(b)1. a.
to e.
On appeal, the Appellant asserts her request qualifies under any of five
subsections of KRS 61.870(10). First, the Appellant is an “individual residing in the
Commonwealth” under KRS 61.870(10)(a). Second, Acme is a “foreign business entity
registered with the Secretary of State” under KRS 61.870(10)(c). Third, the Appellant
“is employed and works at a location or locations within the Commonwealth” under
KRS 61.870(1)(d). Fourth, the Appellant asserts her request is from an “individual or
business entity that owns real property within the Commonwealth” under
KRS 61.870(10)(e). Finally, she claims she “has been authorized to act on behalf of”
Acme, which she says qualifies her under KRS 61.870(10)(f).
A request from any person or entity qualifying under any one paragraph of
KRS 61.870(10) is a request from a “resident of the Commonwealth” under
KRS 61.872(2)(a). Here, the Appellant informed the Board she “is employed and
works at a location or locations within the Commonwealth” under KRS 61.870(1)(d).
This alone was sufficient to satisfy the Board’s requirement that the Appellant state
“the manner in which [she] is a resident of the Commonwealth.” KRS 61.872(2)(a);
see, e.g., 22-ORD-120. Thus, it is immaterial whether, as the Board argues, Acme is
a domestic corporation or a foreign corporation with or without a location in the
Commonwealth. The Act does not disqualify an individual “resident of the
Commonwealth” from submitting a request for public records on behalf of any other
person or entity, even if that other person or entity is not a resident of the
Commonwealth. Therefore, the Board violated the Act when it denied the Appellant’s
request.1
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
1
Because the Office finds the Appellant qualifies as a “resident of the Commonwealth” under
KRS 61.870(1)(d), it need not consider the Appellant’s other residency arguments.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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#384
Distribution:
Ms. Nicole Smith
Howard Downing, Esq.
Sara Crum, Superintendent
Mr. Steven Scrivner