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.

AG says Danville solons broke open-meeting law by deciding secretly to buy a building

UPDATE, Oct. 23: The city has appealed the decision to Boyle Circuit Court, The Advocate-Messenger reports.

The City of Danville violated the state Open Meetings Act by taking action in closed session to buy a building and failing to respond to a complaint about it from the local newspaper, Attorney General Jack Conway has ruled in a decision both sides received yesterday.

"The disputed action in an executive session took place July 23 during a City Commission meeting. There was no public vote regarding purchasing the building during open session that day," reports Stephanie Mojica of The Advocate-Messenger. "It wasn’t until Aug. 13 that commissioners publicly approved the purchase . . . a decision that has stirred some controversy, partially because Commissioner Ryan Montgomery’s father, Mike Montgomery, conducts business with the property’s now-former owner,  Mitchell Barnes of Lexington. On Aug. 13, commissioners said they had reached a 'consensus' during the July 23 executive session that allowed City Manager Ron Scott to move forward with plans to hire a bidder and secure the property through auction. However, a consensus is still a vote, according to the attorney general’s decision."

The commission had told the attorney general's office, "The Commissioners collectively stated to the City Manager that they could potentially approve of a purchase of the . . . building if the sale price was less than the appraised value" and that all of them supported the City Manager hiring "a professional bidder as its agent … so as not to showcase that it was the City bidding." The commission argued that it acted as the Florence City Council did when it agreed in closed session to settle a lawsuit, then approved the settlement at a later, open meeting. Conway's office said that didn't apply "because the appeal before us does not involve a settlement conference in litigation," and noted that "a commitment or promise to make a positive or negative decision" constitutes "taking action" under the open-meetings law. It also faulted the city for not responding to a follow-up complaint the Advocate-Messenger filed Sept. 14. For the decision, click here. For the story, go here.

Hustonville officials refuse to release text of proposed ordinances after first reading

Here's one we've never heard before: A city refusing to provide the text of proposed ordinances on which its city council has held first reading. It is happening in Hustonville, the small Lincoln County town on US 127 between Danville and Liberty, reports Ben Kleppinger of The Interior Journal of the county seat of Stanford:

"Hustonville City Council has passed first readings of five ordinances aimed at curtailing certain behaviors within city limits, but the city has refused to release the text of the ordinances to the public. The ordinances were read aloud by Mayor Marc Spivey at the city's Aug. 7 regularly scheduled meeting. City Attorney Carol Hill refused to give the weekly newspaper copies of the ordinances, claiming they are "preliminary documents," and City Clerk Rita Clem denied a written open-records request, saying "The Open Records Act only governs access to the existing records and not to records that will be created in the future."

Kleppinger reports, "Kentucky Press Association Attorney Jeremy Rogers, who specializes in open meetings and open records law, said there's no question ordinances that pass first reading are open record. Rogers said Hustonville's argument that the ordinances do not exist doesn't make any sense because they have all already received first readings. . . . There's nothing preliminary or private or secret about it. They've read it in an open meeting."

The newspaper is appealing denial of its open-records request to Attorney General Jack Conway. The ordinances deal with littering, illegal parking, jaywalking, wearing of masks and one that would ban "formation of any type of line and/or congregating on the sidewalks, streets or any other public property." (Read more)

AG says Bowling Green should have given paper names of applicants for commission seat

Attorney General Jack Conway has ruled that Bowling Green officials should not have kept secret the names of people who wanted the City Commission to appoint them to a vacant seat on the commission, which has since been filled.

The opinion was issued to the Bowling Green Daily News, which wanted the names before the seat was filled and appealed the denial to Conway. In its story, the newspaper highlighted the reasoning of Assistant Attorney General Amye Bensenhaver: “The public interest in the identities of persons seeking appointment to elective office is often greater than that of the public interest in the identities of persons seeking public employment,” which may be considered confidential.

The city argued that making the applicants' names and resumes public “may work to prevent others from submitting resumes should this process be followed again,” but the attorney general's office said the applicants “forfeited a greater measure of their personal privacy when they ‘threw their hats in the ring’.” For the story on Conway's decision, by the Daily News' Andrew Robinson, click here.

Attorney general faults Kentucky League of Cities, City of Salyersville in open-records cases

The Kentucky League of Cities wrongly denied a Covington lawyer's request for information on how much the group paid its attorneys in a case he handled against them, the attorney general's office has ruled. The attorney general's decisions in open-records and open-meetings cases have the force of law unless overturned in court.

In another opinion, the attorney general's office found that the City of Salyersville "subverted the intent of the Open Records Act, short of denial of inspection," when it refused a request by Jeff Ross for city employee payroll records. The city had demanded that Ross be more specific. The original request was "adequate for a reasonable person" to determine what he wanted, the decision said.

In the League of Cities case, Brandon Voelker told the KOG Blog he planned to use the information in a lawsuit against the league, accusing it of wrongfully defending the first case, which involved a claim for damages caused by a Northern Kentucky sewer overflow. The league had provided insurance to the sewer district.

The league claimed that giving Voelker the information would create unfair competitive or commercial advantage to other insurance providers, since legal costs help make up its insurance rates. The opinion rejected the argument: "We are well aware that KLC occupies a unique position as a public entity, subject to the Open Records Act, that is engaged in a competitive business. Nevertheless, KLC offers no proof of competitive harm from disclosure of the records."

The opinion added, "The legislature's apparent goal in enacting these provisions was to expose KLC, and similarly situated public entities to the light of public scrutiny and not, simultaneously, to establish exceptions that swallow the rule of openness and accountability." For more background on KLC and the Kentucky Association of Counties' open-government issues, click here.

Budgets under review by city councils are open records, AG rules; Midway lets decision stand

A proposed city budget submitted to members of the city council for review is a public document, according to the Kentucky attorney general. Members of the public and the media are entitled to review the document under the Kentucky Open Records Act before it is voted on by the city council. The ruling handed down May 20 reverses rulings of the office from 1996 and 2000.

The dispute began when Heather Rous, a University of Kentucky journalism student who has since graduated, and UK journalism professor Al Cross submitted on April 13 a request to the mayor of Midway for a copy of his proposed budget, which he had submitted to members of the Finance and City Property Committee of the Midway City Council. Students in Cross' advanced reporting class cover the Midway City Council and post stories on the Midway Messenger blog at http://midwayky.blogspot.com/.

Mayor Tom Bozarth declined the request, saying the budget was a preliminary document and therefore exempt from public disclosure. Kentucky Citizens for Open Government appealed the denial, and the attorney general's office ruled a proposed budget is not a preliminary document.

"The proposed budget must be made accessible to the public when it is submitted to the City Council pursuant to KRS 91A.030(7) because it constitutes statutorily required final action of a public agency, in this case, the Mayor of the City of Midway. At this juncture, the budget forfeits the preliminary character it enjoyed while it was in preparation and is no longer a draft. The 'need for governmental confidentiality' accorded the proposed budget prior to submission to the Council must yield to the public’s right to know," the attorney general ruled.

The city has 30 days to file an appeal in Woodford Circuit Court. UPDATE, June 10: Bozarth told the Midway Messenger that the city will not appeal. That clears the way for the decision to be used in similar situations involving other Kentucky cities.

Judge tells Hopkinsville police to release police records on threats made in city

A circuit court judge has ruled that Hopkinsville officials improperly withheld reports from the Kentucky New Era last year. The mayor told the newspaper the city might appeal the ruling because it could set a bad precedent, but if the Court of Appeals upheld the decision that would give it statewide impact.

The New Era asked Hopkinsville police in September for all reports referencing threats made in Hopkinsville during an eight-month period. "City Clerk Crissy Upton provided more than 400 reports, but withheld others, saying they either involved juveniles or were under investigation," Kevin Hoffman writes for the Hopkinsville daily. The newspaper appealed the denial, and Attorney General Jack Conway ruled all the records should be released. The city appealed, and Circuit Judge Andrew Self ruled for the newspaper, holding the city hadn't shown why one or more exemptions in the Open Records Act applied.

Self wrote that the city's response was “thoughtful based on its interpretation of applicable law,” but refusing to release some reports and redacting identifying information such as race and gender violated the law. “The records requested by the New Era were reasonable, appropriate and consistent with its function as a member of the news media to inform the public of the operations of local government,” Self wrote. “If there is a dispute about which records should be released or withheld, it is incumbent upon the public agency to prove in circuit court why a particular exemption applies. To allow otherwise would be akin to the proverbial fox guarding the hen house.”

New Era Editor Jennifer P. Brown said the law makes public “reports completed by police agencies . . . including arrest citations and the initial incident report that is filed when a citizen calls police to report a crime. . . . If a police agency is allowed to withhold the very proof of its work in the way the city of Hopkinsville wants to withhold these records, it becomes impossible for news agencies and private citizens to understand the types of crimes committed in a community and how police are responding to those crimes. Collectively, police reports offer valuable information about trends and patterns in crime. That information should be available to the public.” (Read more)

KPA appeals over denial of Midway budget

The Kentucky Press Association has appealed to the state Attorney General's office the refusal of Midway Mayor Tom Bozarth to release copies of the city's proposed budget for the next fiscal year.

The Midway City Council is scheduled to discuss the budget proposal on Monday. The Midway Messenger had asked in writing for a copy after Bozarth gave it to council members. Bozarth refused, saying the budget was "purely preliminary" and wouldn't be released until the council has finalized it. The Messenger is a blog and website run by Professor Al Cross at the University of Kentucky's Institute for Rural Journalism and Community Issues as an outlet for stories written by students in his community journalism classes.

In its appeal, the KPA argued that exemptions to the Kentucky Open Records Act relating to drafts and recommendations were limited.

"Our position is that it ceases to fit that phrase ("preliminary") once it is distributed to and discussed by members of a public agency at a public meeting. After all, a budget is the basic policy document for a government," the KPA said.

Midway is located in northern Woodford County, halfway between Lexington and Frankfort. For the Messenger story and a link to the appeal, go here.

City utility bills public if they aren't for persons, attorney general rules in Danville case

Individual billing data at a city utility is public if it doesn't reveal information about individual persons, the state attorney general's office has ruled.

The open records decision, which has the force of law but could be appealed, was requested by Clay Moore of Danville, who often requests records from public agencies in Boyle County but has never fild an appeal with the attorney general, for whcih there is no charge. He asked the city water and sewer department for bills of Centre College,Ephraim McDowell Regional Medical Center and Central Kentucky Ambulatory Surgery Center LLC.

The agency declined to release the records, citing a 1996 attorney general's decision. The latest decision overturned that one, saying it was “erroneously postulated on the notion that equal privacy interests could be attributed to aggregate information contained in a water bill for a customer with multiple unidentified users. . . . The interest of the public in ensuring that the department has, and fairly enforces, a uniform billing structure for all customers outweighs the nonexistent privacy interest implicated by the disclosure of the requested billing records.”

The 1996 decision was issued when Ben Chandler, now 6th District U.S. representative, was attorney general. The latest decision, which said the office has the right to change its mind, was written by Assistant Attorney General Amye Bensenhaver and approved by Attorney General Jack Conway. Moore "said Monday he is pleased with the ruling and wants to obtain the information to verify whether the large utility customers in question are being billed properly for their usage," reported David Brock of The Advocate-Messenger. (Read more)

League of Cities invites Herald-Leader to tomorrow's board meeting

UPDATE: Sylvia Lovely has resigned as executive director of the league.

The Kentucky League of Cities board has agreed to open its meeting tomorrow, at which directors are expected to discuss spending and other management issues in the wake of Lexington Herald-Leader stories about the organization that lobbies for cities and in the last 20 years has become their major insurer.

"Our board must be aware of all aspects of our business, including but not limited to compensation policies and guidelines," KLC Executive Director Sylvia Lovely, right, said in an op-ed article in the newspaper today. "And, while we hold to the belief that we are not subject to the open-meetings statutes, we invite the Herald-Leader to come to our meeting on Friday."

Herald-Leader Editor Peter Baniak told the Kentucky Open Government Blog, “We’re pleased that the Kentucky League of Cities has decided to open the meeting because what the league does is of vital public interest to cities, their employees and citizens. We hope the league will continue to be transparent.”

While the league is not covered by the state Open Meetings Act, it appears to be covered by the Open Records Act, which applies to any entity that gets at least 25 percent of the money its spends in Kentucky from state or local authority. The league fulfilled the open-records requests of Herald-Leader reporter Linda Blackford.

Lovely wrote that Blackford's articles "portray an executive with a sense of entitlement to rewards that are beyond the reach of public-sector leaders in our state. None of my compensation would probably have been written about if the paper accepted the League's position that we are in a competitive insurance business and have generated revenues during my tenure on the order of private companies. The insurance program was offered as a replacement for private insurance companies which stopped offering coverage to cities in the late 1980s. We now compete with these companies for city insurance business. The CEOs of those private companies typically earn much more than I in compensation and benefits, work no harder than I do, and do the same kind of business travel for similar purposes." (Read more)

UPDATE, June 19: The KLC board voted today to create a committee to review policies and procedures. It suspended expenditures at Lexington’s Azur Restaurant, which is one-fifth owned by Lovely's husband, Bernard Lovely; suspended travel for spouses of the executive staff; and decided to replace the sport-utility BMW that is part of Lovely's compensation.