Friday, August 19, 2016

A city official's emails related to a position on a private agency are not subject to disclosure

Members of a public agency are not required to turn over records that are held in his or her capacity as a member of a board of a private entity.

Attorney General Beshear issued an opinion in In re: Messenger-Inquirer/Deborah May Nunley, 16-ORD-132 on June 30, 2016, dealing with the request of a newspaper for records from a commissioner of Owensboro. 

The Messenger-Inquirer requested records from Commissioner Deborah May Nunley via email on April 21. Nunley also is chair of the board of directors of Owensboro Health, Inc. The request was for records pertaining to the resignation of Philip Patterson, president and CEO of Owensboro Health. The newspaper also sought any emails with city officials about the resignation. 

The newspaper specifically stated it was seeking records from Nunley because of her position as chair of the board of directors. Owensboro Health operates the Owensboro Regional Hospital, which has more than 4,000 employees and a medical staff of 200, according to its website. 

The day after the request, Nunley responded she had no emails about the resignation. She corrected that the same day, turning over to Steve Lynn, assistant city attorney, copies of two emails to deliver to the newspaper. 

The Messenger-Inquirer insisted that because she was an elected city official appointed to the board of health, all records Nunley possessed on the matter should be subject to an Open Records request. Nunley, per the hospital's attorneys, replied that only emails regarding city matters were subject to a request. 

In the newspaper's appeal to the attorney general, it argued that because Nunley is an appointed representative of the city, she owes a fiduciary duty to the city in her board capacity, thus making those records public records.

Nunley’s response was that the newspaper’s stance would erode the distinction between private and public entities, and all records of the private entity would be public one public official was involved with the private business.

The attorney general's opinion relied on Owensboro Med. Health Sys. v. Haynes, No. 11-CI-1476 (Daviess Cir Ct. July 25, 2012),  that Owensboro Health is not a public entity as described in KRS 61.870(1). Because a board member is a public official does not make the private entity public, as those positions are legally distinct. 

As Nunley gave the two emails she had possession of as a city commissioner, she fulfilled her duties under the Open Records Act, and she was not required to give records she received or sent in her capacity as a board member. 

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