For the second time in a month, a statute which the Bluegrass Institute has characterized as “the most confounding” in the open records law figures prominently in an attorney general’s decision holding that a private contractor to a state agency is not required to disclose records relating to the performance of public services and the expenditure of public funds under the contract.
KRS 61.870(1)(h) was originally enacted to expand the scope of the open records law to records in the possession of private entities that receive 25 percent or more of their funding from state or local government that relate to publicly funded functions, activities, programs or operations. It was amended in 2012 to exclude funds those entities receive for goods or services they provide under public competitively bid contracts from the 25 percent calculation.
Correct Care Solutions, LLC, the corporation whose status is at issue in 17-ORD-117, operates under a competitively bid contract with the Department of Corrections, and the funds its receives from the department for medical services rendered to inmates are excluded from the monetary calculation for determining its status as a public agency under KRS 61.870(1)(h).
In a recent blog we identified two other cases in which this statute, as amended in 2012, enabled corporations that derive some or all of their funds from state or local authorities to avoid accountability under the open records law for the performance of contractual services and the expenditures of public funds. We examined the issue further in the Bluegrass Beacon.
A still active case dating from 2011 – involving a for profit company which provides management services to public waterworks under competitively bid contracts with local agencies – and a June 1, 2017 case – involving a halfway house operating under a competitively bid contract with the Department of Corrections – underscore the seriousness of this problem.
17-ORD-117 – issued on June 22 — demonstrates that these are not isolated cases.
That open records decision involves an inmate’s request to Correct Care Solutions for his medical records. Resolution of the issue presented in the appeal turns on the fact that “all of the revenue CCS receives and expends in the Commonwealth of Kentucky is received through the public procurement process” and is excluded from the 25 percent calculation.
“CCS is not a public agency as that term is defined by KRS 61.870(1) and is therefore not subject to the Open Records Act.”
And here the analysis ends unless and until lawmakers reconsider the wisdom of the 2012 revisions to KRS 61.870(1)(h) and amend the statute as suggested by the Bluegrass Institute in its comprehensive analysis of the state’s sunshine laws and specifically proposed by Representative Chris Harris, D-Forest Hills, in 2016 and 2017.