Utility Management Group, LLC v. Pike County Fiscal Court , 531 S.W.3d 3 ( 2017 )


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  •                                              RENDERED: NOVEMBER 2, 2017
    TO BE PUBLISHED
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    2015-SC-000680-DG                  .
    UTILITY MANAGEMENT GROUP, LLC                                          APPELLANT
    ON REVIEW FROM COURT.OF APPEALS
    v.                     CASE NO. 2013-CA-000929-MR
    PIKE CiRCUIT COURT NO. ll-CI-01286
    PIKE COUNTY FISCAL COURT                                                APPELLEE
    OPINION OF THE COURT BY JUSTICE HUGHES
    AFFIRMING AND REMANDING ·
    Appellant Utility Management Group, LLC (UMG), a privately-owned
    limited liability company, provides management and operational services to
    Mountain Water District (the District), a water district created pursuant to
    Kentucky Revised Statute (KRS) Chapter 74. Residents of the unincorporated
    areas of Pike County pay the District for water and sewer services provided to
    them through infrastructure and equipment owned by the     D~strict,   and the
    District in turn pays UMG a monthly fee specified in the parties' contract. A
    January 2011 audit of the District by former Auditor of Public Accounts Crit
    Luallen revealed that from the c;:ontract's inception in July 2005 through June
    2010 the District paid UMG.over $36 million. The Auditor had limited success
    in obtaining business records from UMG regarding the actual costs of the
    services UMG provided, so in March 2011 the Pike County Fiscal Court made
    an Open Records request pursuant to KRS 61.870 and 61.872. When UMG
    declined to produce the requested- documents on grounds it was a "wholly
    private entity," Pike County pursued and Secured an Attorney General opinion,
    11-0RD-143, finding UMG subject to the Open.Records Act, KRS 61.870-.884
    (the Act) and requiring production. On UM G's judicial appeal, the Circuit -
    Court rejected the Attorney General's analysis and, having additionally found
    part of the statute unconstitutionally vague, concluded that UMG had no
    disclosure obligation under the Act. The Court of Appeals reversed, holding
    that UMG was subject to the Act as it existed at the time of the initial request
    and denial in March 2011 and further that the statute was not
    unconstitutionally vague. On discretionary review, we affirm the Court of
    Appeals' opinion remanding this matter to Pike Circuit Court for entry of an _
    order requiring UMG to comply with the Open Records Act.
    RELEVANT FACTS
    The District was established in 1986 through the merger of three
    separate water districts, and is a public utility subject to the Public Service
    Commission. KRS 278.015. Beginning July 3, 2005, the District's Board of
    Commissioners entered into a five-year contract with UMG whereby UMG
    would perform the operations, management and maintenance of the District for
    an annual   fe~   of $6,819,000, subject to annual adjustment for an increase in
    customers and changes in the Consumer Price Index. In the year preceding
    the aforementioned Attorney General's Opinion, 11-0RD-143 (Sept. 14, 2011),
    the annual fee was approximately $7.6 million. U_nder the contract, the
    2
    .   ·•
    District retained ownership of all equipment and infrastructure but transferred
    all of its personnel and water district responsibilities to UMG.
    UMG was organized in Keritucky in August 2004 and the District was its
    first client. The record reflects that as of the date of this litigation (and
    apparently throughout its existence) UMG had only one other client, the City of
    Pikeville. Under an approximat~ly $4 million annual contract with the City of
    Pikeville, UMG providt:(S water and sewer se.rvices, garbage pickup, street
    services and parks maintenance. Although the record is less than clear, it
    appears that UMG has never contested that all or essentially all of its income is
    derived from its contracts with the District and the City of Pikeville.
    An audit of the DistriGt by the Auditor of Public Accounts produced a
    January 27, 2011 report raising significant concerns about the District and its
    contract with UMG.l On March 4, 2011, an Assistant Pike County Attorney, on
    behalf of Pike County Fiscal Court, asked UMG to produce business records
    pertaining to the District/UMG contract from January 7, 2005 through the
    present. When UMG declined, Pike County sought and obtained an Attorney
    Gene:r:al Opinion. '
    In 11-0RD-143, the Attorney General noted that KRS 61.870(1)(h), as it
    then existed, defiried a "public agency" subject to the Act to include "any body
    which derives at least twenty-five percent (25%) of its funds expended by it in
    the Commonwealth .of Kentucky from state or local authority funds." The
    1(The report is available at http://www.auditor.ky.gov/Public/Audit
    Reports/Archive/201 lMountainWaterDistrict.pdf.)
    3
    Attorney General opined that UMG met that definition because (1) its only
    known sources of revenue were the funds derived under its contracts with the
    District and the City of Pikeville; (2) the District and the City were public
    . agencies   col~ecting   statutorily auth.orized fees and thus the monthly contract
    payments tQ UMG were properly characterized as "state or local authority
    ...
    funds;" and (3) UMG necessarily derived at least 25% (and probably all) of the
    funds expended by it in Kentucky from state or local authority funds.2 The
    Attorney General concluded that UMG was thus required to comply with the
    Act and to the extent it objected to production of individual documents it was
    necessary to identify in writing the applicable exception under KRS ·
    61.878(l)(a)-.(n).
    UMG filed a Complaint and Petition for           D~claratkm   of Rights in Pike
    Circuit Court on Septe:r;nber 28, 2011. While the case was pending, the
    .                   I
    General Assembly amended KRS 61.870(1)(h), effective July 12, 2012. The new
    .provision provides:
    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 obtafned through a public
    competitive procurement process shall not be included in the
    determination of whether a body is a public agency under this
    subsection.
    /
    2 The Attorney General did not specifically address whether UMG was a "body,"
    but implicitly found as much.                        ·                         ·
    4
    If applicable, the highlighted amendment language removes UMG from the
    coverage of the Act because 'its contracts with the District and the City of
    Pikeville were ostensibly pursuant to a public competitive procurement
    process.a Following briefing, the Circuit Court concluded that the 2012
    amendment was remedial and therefore applied retroactively. Alternatively, it
    held that the "body" referred to in the earlier version of KRS 61.870(1)(h)
    (hereafter referred to as the 1994 version) meant a "public body," not a private
    business entity, and in any event the statUtory definition was
    unconstitutionally vague.
    The Court of Appeals rejected all of the circuit court's conclusions. It
    found the 2012 amendment to be substantive.and therefore not retroactive.
    Analyzing the 1994 version of KRS 61.870(1)(h), it cop.eluded that considered in
    the context of other provisions of the Act, the word "body" necessarily included
    a private business entity such as UMG and, finally, that the statute was not
    void for vagueness.
    ANALYSIS
    I. UMG is a "Body" Subject to the Open Records Act.
    The Open Records Act was adopted in 1976 with a preamble stating that
    "access to information concerning the conduct of the peoples' business is a
    fundamental and necessary right of every citizen in the Commonwealth of
    3 The Auditor's report identified several concerning irregularities in the
    competitive bid pr~cess with respect to the District's award of the UMG contract but
    given our resolution of this case we need not address further whether the UIVIG
    contract was the product of a truly public competitive procurement process.
    5
    Kentucky." 1976 Ky. Acts Chapter 273. The Act applies to any entity
    qualifying as a "public agency" under KRS 61.870(1) including state or local
    government officials, departments, commissions, boards and special district
    boards. As noted, the initial focus in this case is the 1994 version of KRS
    61.870(l)(h), which refers to a "body" that derives at least 25% of the funds it
    expen.ds in Kentucky from "state or local .authority funds." In construing ·
    "body," the circuit court focused on the absence of any reference in the Act to
    companies, corporations, limited liability companies or other private business
    entities and the use of the word "body" in several parts o'r KRS 61.870 as
    referencing clearly governmental bodies. See, e.g., KRS 61.870(1)(d) "every
    county and city governing body ... ;" KRS 61.870(\1.)(g) "any body created by
    state or local authority in any branch of government.... " That court
    concluded, erroneously, that construing "body" to include a "private, non-
    governmental business is clearly inconsistent with a plain reading of the
    balance of the statute."
    As often stated, our primary goal in construing statutes is to give effect to
    ·the intent of the General Assembly and we derive that intent, to the extent
    possible, from the language the legislature chose, employing statutory
    definitions if they are provided and otherwise construing terms "as generally
    understood in the context of the matter under consideration." Shawnee
    Telecom Res., Inc. v. Brown, 
    354 S.W.3d 542
    , 551 (Ky. 2011). "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
    6
    statutes." 
    Id. citing Hall
    v. Hospitality Res., Inc., 
    276 S.W.3d 775
    (Ky. 2008).
    Vife also presume that   legisl~tors   "did not intend an absurd statute or an
    unconstitutional one.'" 
    Id. If the
    statute is truly ambiguous or frustrates a
    plain reading, only then do we resort to extrinsic aids such as legislative
    history or the 'construction of similar statutes (especially model or uniform
    statutes) by other courts. Id .
    . There is no definition of "body"4 in the Open Records Act but the word is
    illuminated by the definition of "public record" in KRS 61.870(2) which
    provides:
    "Public record" means all books, papers, maps, photographs,
    cards, tapes, discs, diskettes, recordings, software, or other
    documentation regardless of physical form or characteristics,
    which are prepared, owned, used, in th.e possession of or. retained
    by a public agency. "Public record" shall not include any records
    owned or maintained by or for a body referred to in subsection (1)(h)
    of this section that are not related to functions, activities, programs,
    or operations funded by state or local authority; ·
    (Emphasis supplied). As the Court of Appeals aptly noted, state and local
    govern.mental bodies function solely for governmental purposes so the second
    sentence of KRS 61.870(2) is logically unnecessary if the Act does not
    encompass some private entities. Stated differently, state and local
    governmental bodies would not maintain records that are "not related to
    functions, activities, programs or, operations funded by state or local
    authority." 
    Id. (emphasis supplied).
    Similarly, it is difficult to fathom why the
    .4 The "generally understood" meaning, Shawnee 
    Telecom, 354 S.W.3d at 551
    , of
    the word "body" is discussed infra in the context of UMG's constitutional challenge to
    KRS   61.870(l)(h):
    7
    KRS 61.870(1)(h) reference to a body deriving at least 25% of its funds from
    state or local authority funds would be necessary if non-governmental entities
    were entirely excluded from the Act since state and local governmental entities
    derive all, or virtually all, of their funds from the government.
    Considering the statute as a whole, we are compelled to conclude that a
    private entity such as UMG can indeed be. a "body" as encompassed
    .
    by KRS
    61.870(1)(h),5 leading to the.inquiry of whether UMG derives at least 25% of its
    funds from "state or local authority funds." While the parties note that the
    1994 version did not contain a time period for which to calculate the
    percentage, that timing concern is irrelevant in this case because it is
    undisputed that UMG derives all or virtually all of its revenues from the
    District and the City of Pikeville. As the Attorney General correctly observed:
    UMG has only two known sources of revenue--contracts with
    MWD [the District] and the City, both of which are indisputably
    public agencies within the meaning of KRS 61.870(1), and which
    are statutorily authorized to collect fees paid by consumers for the
    services provided. Upon receipt by each public agency, regardless
    of the source or purpose for which such funds are paid, those
    '-     funds take on a public character and can be properly characterized
    as 'state or· local authority funds,' a phrase which is comprehensive
    and includes fee revenues generated by MWD and the City. UMG
    is then compensated with public funds for performing certain
    services through, or on behalf of, MWD and the City.
    s This is consistent with the Attorney General's interpretation of the term
    through the years. On several occasions, a private entity has been held subject to the
    Open Records Act. See 10-0RD-062 (Keeton Corrections, Inc.-Paducah); 04-0RD-111
    (Kentucky Baptist Homes for Children, Inc.); 02-0RD-222 (Seven Counties Services,
    Inc.).
    8
    Given these undisputed       f~cts,   the mo_nies UMG expends in its solely Kentucky-
    based business are necessarily "state or local authority" funds and UMG is a
    "body" qualifying as a "public agency" under KRS 61.870(1)(h). As a "public
    agency," UMG was obligated to produce "public· records" pursuant to the Act, at
    least as it existed in 1994, upon request by the Pike County Fiscal Court. This
    is certainly not "an absurd result," Shawnee 
    Telecom, 354 S.W.3d at 551
    , the
    construction to be avoided in statutory construction, given the wholly public
    nature of UM G's business activities. Of course, UMG insists the 1994
    definition does not apply following the General Assembly's amendment of KRS
    61.870(1)(h) so we turn next to that amendment and its effect, if any, on the
    issue before us.
    .                                    .
    II. The 2012 Amendment to KRS 61.870(1(h) is not Retroactive.
    In Comm. Dept. of Agriculture v. Vinson, 
    30 S.W.3d 162
    , 168 (Ky. 2000),
    this Court recognized the time-honored "fundamental principle of statutory
    construction in Kentucky" that bans the retroactive application of statutory
    amendments. "Kentucky law prohibhs the amended version of a statute from
    being applied retroactively. to events which occurred prior to the effective date
    of the amendment unless the amendment expressly provides for retroactive
    application."   
    Id. As our
    General Assembly has pointedly stated: "No statute
    shall be construed to· be retroactive, unless expressly so declared." KRS
    · 446.080(3). With this directive, our Court has held there are no mandatory
    "magic words" for retroactive legislation but the legislature ."must expressly
    manifest its desire that a statute apply retroactively." Baker v. Fletcher, 204
    9
    S.W ..3d 589, 597 (Ky. 2006).   Unq~estionably,   we recognize a "strong
    presumption" that statutes operate pz:-ospectively. 
    Vinson, 30 S.W.3d at 168
    .
    UMG seeks to override this presumption and secure the application of
    the 2012 amendment to KRS 6L870(1)(h) to the Pike County Fiscal Court's
    2011 Open Records request on the grounds that the amendment was
    "remedial" and thus can be applied retroactively. In 
    Vinson, 30 S.W.3d at 168
    ,
    this Court noted that
    -
    substantive
    .
    amendments to the law, "amendments which
    change and redefine the out-of-court.rights, obligations and duties of persons
    in their transactions with others" come with the rule that statutory
    amendments are not to be applied retroactively. So-called "remedial"
    amendments are not, however, covered by the presumption against
    retroactivity. 
    Id. A remedial
    statute generally expands "an existing remedy
    without affecting the substantive basis, prerequisites, or circumstances giving
    rise to the remedy." Kentucky Ins. Guar. Ass'n v. Jeffers, 
    13 S.W.3d 606
    , 609
    (Ky. 2000). As explained in Moore v. Stills, 307 S.W ..3d 71, 81 (Ky. 2010):
    Among the "remedial" enactments are statutory amendments that
    clarify existing law or that codify judicial precedent. Because such
    amendments do not impair rights a party possessed when he or
    she acted or give past conduct or transactions new substantive
    legal consequences, they do not operate .retroactively and thus do
    not come within the rule against retroactive legislation.
    (Citations omitted).
    Without a doubt, the 2012 amendment to KRS 61.870(1)(h) effected a
    substantive change in the law. Prior to that time, a "body" which met the 25%
    expenditure test was subject to the Act but after the· amendment, designated
    10
    effective as of July 12, 2012, a body which derives its public funds from a
    contract issued in a public competitive procurement process is no longer
    covered. "Out-of-court rights, obligations and duties," Vinson, 30 S.W.3d at.
    168, are manifestly affected by such a change in the law. More precisely, UMG
    was plainly covered by the 1994 version of the statute but it would seemingly
    avoid Open Records Act obligations altogether under the 2012 version because
    its contract with the District (~d with the City of Pikeville) was 09tained
    following what was ostensibly "a public competitive procurement process."
    Stated conversely, prior to the 2012 amendment the Pike County Fiscal Court
    had a right to request and receive documents from UMG while. post-
    amendment it would not.
    In an effort to avoid the obviously substantive nature of the 2012
    amendment, UMG argues that the 2012 amendment really did "clarify existing
    law." 
    Moore, 307 S.W.3d at 81
    . UMG points      to~   2009 Jefferson Circuit Court
    opinion regarding the perceived unconstitutionality of the 1994 version of KRS
    61.870(1)(h) and a "bill summary" for the 2012 amendment that appeared on
    the Kentucky General Assembly's website. Neither of these extraneous matters·
    supports the conclusion that the 2012 amendment was simply "clarifying" as to
    the "bodies" identified in KRS 61.870(1)(h). that are subject to public records
    disclosure obligations.
    Beginning with the bill. summary, UMG focuses on the following language
    regarding H.B. 496 (2012):
    Retain original provisions, except change the requirement that the
    company derive at least 25 percent of its funds expended by it in
    11
    the Commonwealth wi~hin the current fiscal year to within any
    fiscal.year; clarify that the exclusion applies to funds derived from
    a state or local authority in compensation for goods or services
    provided by a contract obtained through a public competitive
    procurement process.
    See http://www.lrc.ky.gov/record/ 12rs/hb496.htm (emphasis addedL A
    review of the relevant website establishes that the "clarify" language does not·
    refer to clarifying the existing 1994 definition. Rather, the original 2012 bill
    directed to the statute was followed by a House Committee Substitute (HCS)
    and that HCS was intended to clarify the language in the 2012 proposed
    amendment then under consideration. Whereas the original 2012 bill simply
    stated, "public procurement process" the HCS added
    .
    the word "competitive."            ~
    In any event, the clarification reference in the bill summary appears in the
    context of clarifying an exclusion ("clarify that the exclusion applies to ... ) and
    there were no exclusions in the 1994 version of KRS 61.870( 1)(h). To the
    extent the bill summary is entitled to any deference, a debatable proposition, it
    clearly says nothing about the 2012 legislative enactment clarifying the existing .
    1994 statute.
    As for the 2009 Jefferson Circuit Court opinion; 6 that court appropriately
    identified a shortcoming in the 1994 version of KRS 61.870(1)(h),       i~e.,   the
    absence of any timeframe for which to assess the 25% expenditure threshold.
    In some instances, including the. case before that circuit court, the time frame
    for determining whether a body has the requisite level of public fund
    6 Chilton v. MA. Mortenson Co., Case No. 09..:cI-02749 (Jefferson Circuit Court,
    Div. 13 Nov. 24, 2009).                ·
    12
    expenditures could be determinative,
    .
    e.g.,. the 25% threshold may be met for
    the preceding three years but not the preceding year alone. The -2012
    legislation addressed this specific concern by adding the language "within any
    fiscal year," leading to the logical interpretation that if the records sought are
    for a fiscal year in which the 25% threshold is met, there is an obligation to
    produce. There is no indication that this part of the 2012 amendment, which
    addre~sed   an obvious omission from the original statute, was prompted by the
    Jefferson Circuit Court opinion but, in anievent, the clarification of this one
    troubling timeframe issue does not convert the 2012 amendment as a whok
    into a remedial statute. While it is plausible to deem the "in any fiscal year"
    language remedial, it is not at all plausible to deem the remainder of the 2012
    amendment removing certain bodies that receive public funds from the ambit
    of the Open Records Act remedial. That change is indisputably substantive
    and simply cannot be applied retroactively.
    Finally, we note UMG cites authority from other jurisdictions7 for the
    general proposition that until this matter is fully concluded by final opinion of
    this Court, the Pi_ke County Fiscal Court's right, if any, to UMG's records has
    not "vested" and, accordingly, applying the 2012 amendment would not really
    be a retroactive application of the law. Given   th~   language employed by our
    General Assembly in the Open Records Act, we find these out-of-state decisions
    unpersuasive. Our statute reflects that even if the requester is denied the
    1Deal v. Coleman, 751 S.E.~d 337 (Ga. 2013); Houston Indep. School Dist. v.·
    Houston Chronicle Pub. Co., 
    798 S.W.2d 580
    (Tex. App. 1990).
    13
    public records requested and has to pursue them through an appeal to the
    · Attorney General
    .      and even all levels of the .Kentucky Court of Justice, as the
    '
    ,Pike County Fiscal Court has done in this case, the right to inspect Vests at the
    time of the original, statutorily authorized request.
    KRS 61.87;2(1) provides that "all public records shall be open for
    inspection by any person" and KRS 61.872(2) elaborates that "any person shall
    have the right to inspect public records." (emphasis supplied). ·The public
    agency that maintains the   r~cords   has essentially three business days to
    respond. See KRS 61.880. ·If inspection is denied, there .is recourse to the
    Office of the Attorney General pursuant to KRS 61.880 followed by a judicial
    remedy pursuant to KRS 61.882. In subsection (5) of the judicial appeal
    statute, the General Assembly provided for the recovery of costs and attorney
    fees by a requester who successfully pursues an Open Records Act appeal. The
    General Assembly further detailed that "it shall be within the discretion of the
    court to award the person   ~n   amount not to ex;ceed twenty-five dollars ($25) for
    . each day that he was denied the 'right to inspect or copy said public record."
    KRS 61.882(5). We read this to mean that the inspection right exists and fully
    '            '
    vests when a person first seeks and is denied-public records which are
    statutorily subject to the Open Records Act. Here, the Pike County Fiscal
    Court's right to the records it sought from·UMG vested in March 2011, weU
    before the 2012 amendment of KRS 61.870(1)(h).
    14
    III. The 1994 Version of KRS 61.870(1)(h) Was Constitutional.
    _,
    With UMG plainly subject to the Open Records Act as it existed in March
    2011 and unable to avail itself ~f the 2012 apiendment, the· remaining question
    for our consideration is whether KRS 61.880(1)(h) in its 1994 form was
    constitutional. The circult court found the statute unconstitutionally vague
    and unintelligible, primarily due to the lack of definitions for the terin "body"
    and the phrase "state or local authority funds." The Court of Appeals rejected
    this analysis, and we do as well. Turning to the constitutionality issue, we are.
    ever mindful of the presumption that the statutes we address are
    constitutional. Curd v. Ky. State Bd. of Licensure, 
    433 S.W.3d 291
    , 305 (Ky.
    2014).
    As this Court noted in Bd. of Trustees of the Judicial Form Ret. Sys. v.
    Atty Gen. of Commonwealth, 132     S.W~3d    770, 778 (Ky. 2003):
    The void-for-vagueness doctrine is most often applied in the
    context of the First Amendment, the criminal law, and punitive
    civil laws. However, while statutes affecting those areas should
    receive the most rigorous review and are most commonly held void
    for vagueness, non-punitive civil, regulatory, or spending statutes
    are also invalid if they are so unintelligible as to be incapable of
    ·judicial interpretation. In that circumstance, the statute often is ·
    declared void for "unintelligibility" or "uncertainty" as opposed to
    "vagueness."
    (Citations omitted). The latter "void-as-unintelligible" doctrine is most aptly
    reflected in our predecessor Court's statement in Folks v. Barren Cty., 
    232 S.W.2d 1010
    , 1013 (Ky. 1950): "But where the law-making body, in framing the
    law, has .not expressed its intent intelligibly, or in language that the people
    upon whom it is designed to operate or whom it affects can understand, or
    15
    from which the courts can deduce the legislative will, the statute will be
    declared to be inoperative and void."
    As the Bd. of Trustees Court explains, the constitutional foundation for
    the void-for-vagueness doctrine is the First Amendment for laws that constrain
    speech and the Due Process Clause of the Fifth and Fourteenth Amendments
    for criminal 
    laws. 132 S.W.3d at 781
    . The constitutional basis for the void-for-
    unintelligibility doctrine is not found in the Bill of Rights but rather the
    bedrock principle of separation of powers. 
    Id. at 780-81.
    See Ky. Const.§ 27
    (providing for separation of powers among executive, legislative and judicial
    branches of government); Ky. Const.§ 28 (prohibiting any branch from
    exercising powers committed to the other two branches);. Ky. Const§ 29
    (vesting legislative power in General Assembly). Where a statute is
    unintelligible, the courts cannot interpret it but instead must speculate about
    the legislative intent: such judicial speculation is effectively unauthorized
    judicial 
    legislation. 132 S.W.3d at 781
    . See Sullivan v. Brawner, 
    36 S.W.2d 364
    , 368 (Ky. 1931) (When a court is "left in the dark with no lights furnished
    by the statute to dissipate that darkness" it cannot engage in conjecture lest it
    "allocate to itself legislative functions"). In Bd. of Trustees, this Court
    \
    appropriately noted that faced with that situation-judicial legislating due to
    unintelligibility-the proper course is to declare the chalienged statute ·
    unconstitutional and give the General Assembly the opportunity to pass a new,
    intelligible 
    statute. 132 S.W.3d at 781
    .
    16
    Turning to the 1994   versio~   of KRS 61.870( 1)(h) and recognizing that is
    does not involve speech or criminal law, we consider the void-as-unintelligible
    doctrine. The question posed is whether the people the statute affects can
    understand it and the courts can deduce the legislature's will. 
    Folks, 232 S.W.2d at 1013
    . The answer is yes, most certainly.
    '
    The absence of a definition for the word   "body~   does not render
    unintelligible the phrase "any body which derives at least twenty-five percent
    (25%) of its funds expended by it in .the Commonwealth of Kentucky from state
    or local authority funds." A common definition of the term "body" in the legal
    sense is "a group of individµals regarded as an entity; a corporation." See
    American lferitage Dictionary of the English Language (5th ed. 2011). and
    Webster's II New College Dictionary (1995). Similarly, it is common sense that
    funds or monies held by a state or local authority (such as funds held by the
    District arid the City of Pikeville, both ·of which are public agencies within the
    meaning of KRS 61.870(1)(h)) constitute "state or local authority funds." The
    ·1994 statute could have been dr'afted more precisely, perhaps, but that is not
    the test of constitutionality under the void-for-vagueness doctrine,·
    Commonwealth v. Kash, 
    967 S.W.2d 37
    , 43 (Ky. App. 1997), nor should it be
    when the issue is whether the statute is void-a,s-unintelligible. If people it
    affects can understand it and courts such as this one can interpret it without
    17
    great difficulty, the statute must be deemed constitutional. KRS 61.870(1)(h)
    in its challenged form was and is constitutional. s
    CONCLUSION
    At the time of Pike County Fiscal Court's 2011 Open Records Act
    request, UMG was a "public agency" subject to the Act pursuant to KRS
    61.870(1)(h) because it was "a body which derives at least twenty-five percent
    (25%) of its funds expended by it in the Commonwealth of Kentucky from state
    or local   author~ty   funds." The 2012 amendment to KRS 61.870(1)(h) was a
    substantive amendment and, consequently, does not apply retroactively to
    relieve UMG of its disclosure obligation in response to the Pike County Fiscal
    Court's request. Finally, the challenged 1994 version of KRS 61.870(1)(h) was
    and is constitutional: it is sufficiently intelligible that people can understand it
    and the courts can discern legislative intent withmJt resort to judicial
    speculation. Accordingly, we affirm the Court of Appeals' conclusion that UMG
    must respond to the Pike County Fiscal Court's March 2011 Open Records Act
    request, and remand this matter to Pike Circuit Court for entry of an order
    consistent with this Opinion.
    Minton, C.J.; Keller, VanMeter, and Venters, JJ., concur. Wright, J.,
    dissents by separate opinion in which Cunningham, J., joins.
    s UMG raises in this Court, for the first time, an equal protection claim, a claim
    not included in its Complaint and Petition for Declaration of Rights and not addressed
    by either of the lower courts. As we have regularly observed, appellate courts are -
    '"without authority to review issues not raised in or decided by the trial court.m Ten
    Broeck DuPont, Inc. v. Brooks, 
    283 S.W.3d 705
    , 734 (Ky. 2009) citing Regional Jail
    Authority v. Tackett, 
    770 S.W.2d 225
    , 228 (Ky. 1989). We do not address this
    eleventh-hour argument.
    18
    WRIGHT, J., DISSENTING: When the Pike County Fiscal Court
    ~equested   records from UMG, a privately-owned, for-profit Kentucky limited
    liability corporation, UMG replied to the request stating that, as a private
    entity, it was not subject to the Open Records Act. TI:iis case turns on this
    Court's application of KRS 61.870(h). As that statute existed at the time of the
    request, it defined "public agency" to include "any body which derives at least
    twenty-five percent (25%) of its funds expended by it in the Commonwealth of
    Kentucky from state or local· authority funds." Since the litigation in the
    present case began, the General Assembly has amended the statute. The
    amendment specifically excludes funds "provided by a contract obtained
    through a public competitive procurement process" from consideration in
    ·....   '                                            .
    determining whether a body is a public agency. UMG's funds are obtained
    through such a competitive procurement process. Therefore, under the
    amendment, UMG would be excluded.
    This case turns on which version of the statute applies. The majority
    holds the pre-amendment version applies; however, I respectfully disagree and,
    therefore, dissent. While the statute does not explicitly provide for its
    retroactive application, this Court has recognized an exception to the
    presumption against retroactivity. "[S]tatutory amendments that do not affect
    ·substantive rights, amendments often referred to as 'remedial,' do not come
    within the rule prohibiting retroactive application." Moore v. Stills, 
    307 S.W.3d 71
    , 80-81 (Ky. 2010) (internal citation and quotations omitted). "[S]tatutory
    amendments that clarify existing law" are remedial in nature because "such
    19
    amendments do not impair rights a party     poss~ssed   when he or she acted or
    \                '
    give past conduct or transactions new substantiVe legal consequences." 
    Id. at 81.
    "Here, the General Ass~mbly merely clarified its definition of public
    agency. The Legislature knew it needed to do so     be~~use   of the ambiguity of
    the statute. In fact, Rep:r;:esentative Johnny Bell (the arriendment's primary
    sponsor) even said as much during committee hearings on- the amendment. He
    stated:
    What -this legislation is attempting to do is to protect private
    industry, private entities. What is happening is there has been,
    what I feel like, a misinterpretation of the original legislation. If
    you read that legislation, it's not very good~ It's not very well
    written, in my opinion as an attorney. It's now been held by a
    Louisville judge [in Chilton v. MA. Mortenson Co., Case No. 09-CI-
    027.49 (Jefferson Circuit Court, Div. 13 Nov. 24, 2009)] to be all
    overbroad and vague . . . . I would have liked to have changed a lot
    of it, but because of the scrutiny, I decided not to do that. So, w.e
    done a very minute change, which in essence states that someone
    that goes through a public, competitive procurement process, that
    is already open to the public wholeheartedly, anyone can see that,
    any competitive bid in the state is open to the public .... So, we
    felt like, due to the Louisville judge's holding and the disagreement
    with the interpretation that we needed to do some minute
    clarification to protect private entities.
    The Legislature was looking at cases in which a large, out-of-state
    company with a contract for close to $250 million with the state was not
    considered a "public agency" (and, therefore, not subject to open records
    requests), while a smaller, in-state private LLC with a fraction of the revenue
    from local-government contracts would be subject to open up its books. This is
    .   ,
    an absurd result. But, by a simple clarification of the statutory language', the
    General Assembly could avoid it.
    20
    This clarification did not impair the rights of the Fiscal Court. Rather, it
    merely provided a better frame of reference to the bodies to which the
    legislature had always intended the statute to apply. This only makes sense.
    The public competitive procurement process is already, as its name indicates,
    open to the public. What the public ·is doing with its funds through this
    process is not closed in any way-_and the' details surrounding said process are
    certainly available to the public through an ope_n records request. However,
    the legislature never intended the books of the private companies engaging in
    the public   co~petitive   procurement process to be subject to such a request.
    The fact that the Act never so much as mentions private companies lends
    credence to this assertion.
    Because the Fiscal Court never had a right to these records, no rights
    would be impaired by the retroactive application of the amendment. Therefore,
    the clarification the General Assembly made to the Open Records Act was
    remedial in nature and should be applied retroactively.
    Furthermore, regardless of whether UMG was subject to the Open
    Records Act, the Fiscal Court's request was overbroad. It requested "copies of
    [UMG's] checks and all expenses since the.original contact [sic] between
    Mountain Water and UMG."· It also sought "a list of expenditures including
    check number, date, amount and payee for all checks written from January 7,
    2005 to present." In fact, the Fiscal Court's own attorney admitted during oral
    that an overbroad interpretation could be given to the request. Contrary to the
    request, KRS 61.870(2) plainly provides: "'Public record' shall not include any
    21
    records owned or maintainep by or for a body referred to in subsection.(l)(h) of
    this section that are not related to . functions, activities, programs, or operations
    .
    funded
    .
    by state"-or local authority .. ; ." KRS 61.870(2). Therefore, the request
    exceeded the parameters of the Act.
    For these reasons, I respectfully dissent.
    Cunningham, J., joins.
    COUNSEL FOR APPELLANT:
    Kevin Crosby Burke
    Jamie Kristin Neal
    Burke Neal PLLC
    ;
    COUNSEL FOR APPELLEE: .
    John Doug.Hays
    David Seth Kaplan
    Casey Leigh Hinkle .
    Kaplan & Partners LLP
    22