Sunday, January 20, 2013

Burnside violated Open Records Act, AG says

The City of Burnside, in Pulaski County, violated the Open Records Act when it did not respond in writing to a proper request to City Council Member Frank DeNiro’s request for public records, according to the attorney general’s decision on the matter.

DeNiro requested to “’view the most current Burnside water plant plans - drawings and water lines,’” on April 4, 2012, according to the decision.

DeNiro asked Burnside Mayor Ron Jones to see the city’s water plant plans, and with no definite response, filed an open records request, according to his account of the process, which was mentioned in the attorney general’s decision.

He said he later asked to receive a written response and was told the mayor had made an inquiry to the Kentucky League of Cities. DeNiro said he then received an email that stated he could not see the plans because of Homeland Security issues.

According to email exchanges provided by DeNiro sent between Jones and workers at the KLC, the mayor was advised that the city would “have to give a detailed explanation of ‘reasonable likelihood of threatening the public safety by exposing a vulnerability,’ if they plan to deny these records.”

KLC Legal Services Analyst Kim Johnson also advised the mayor that denying records on those grounds would be difficult, too, because the requester was a city council member.

The attorney general’s office received DeNiro’s appeal on Dec. 4, and Burnside City Attorney D. Bruce Orwin responded to the appeal.

“‘The mayor of the City of Burnside informs me that neither the City of Burnside nor any of its departments have copies of these plans for the records requested by Mr. DeNiro,’” according to the Orwin’s response as stated in the attorney general’s decision.

Orwin said that the mayor said should the records be deemed acceptable for release that he would request the plans remain in city offices, with no photocopies or photos of the plans being permitted because of security concerns.

“We find that the City of Burnside failed to meet its first obligation under the Open Records Act, which is to give a timely written response to a written request to view public records,” according to the decision.

By failing to respond in writing, the city of Burnside also committed a procedural error. And, since the city misrepresented the advice it received from the KLC, the city’s conduct was seen as “a substantive denial of inspection.”

“At no time did the City either make the required written response or justify the withholding of any records under a specific provision of” Kentucky state law, according to the decision.

The attorney general’s office stated that it did not have enough information to say why Burnside would not be in possession of the records and referred the matter to the Department of Libraries and Archives to take action should it be deemed appropriate.

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