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.

Bill would shield some holders of competitively procured contracts from open-records requests

A state House committee voted yesterday "to change the Kentucky Open Records Act to make private the records of some organizations doing business with government," John Cheves reports for the Lexington Herald-Leader. "Presently, any organization that gets at least 25 percent of its revenue from local or state government must share some records under the act, which is meant to bring transparency to public spending." House Bill 496 would exclude from the calculation money from contracts "obtained through a competitive public procurement process."

The bill's sponsor, Rep. Johnny Bell, D-Glasgow, said it was prompted by letters that Glasgow lawyer John Rogers has been sending highway contractors, who depend largely on state government. Rogers didn't return Cheves's call for comment, but "One of the companies that Rogers has asked for records, Hinkle Contracting Co. of Paris, has alleged in a letter to Attorney General Jack Conway that Rogers is working on behalf of a company called Utility Management Group," which runs Pike County's water and sewer systems. "Conway's office ruled in September that UMG is a public entity under the Open Records Act and must disclose spending information. UMG is appealing in Pike Circuit Court."

Buckner Hinkle Jr. of Hinkle Contracting told Cheves that Rogers is trying to "goad other contractors to support UMG" in the lawsuit. "Bell said he is not involved with UMG, and his bill is not intended to protect UMG from public disclosure," Cheves reports.

Kentucky Press Association Executive Director David Thompson said KPA does not oppose the bill because Bell changed it to say that the 25 percent rules applies to any fiscal year, not "the current fiscal year." Current law leaves that point unclear.

Disclosing total fees for sewer project does not invade customers' privacy, attorney general rules

The City of Danville violated the state Open Records Act substantively and procedurally when it failed to respond timely and gave an invalid reason for refusing to reveal fees generated by a sewer project, the state attorney general's office has ruled.

On Oct. 12, Clay Moore requested “one copy of the revenue received by the City of Danville, by month for 2009, 2010, and 2011, to date, from commercial and residential sewer fees generated from the Mocks Creek Sewer Project for Northpoint [Training Center], Hunt Farm Subdivision and residential customers of Gwinn Island.”

Moore did not receive a response within three days as the open-records law mandates, and he appealed to Attorney General Jack Conway. On Oct. 31, 19 days after the original request, the city clerk issued a response denying the request on grounds of privacy, the exemption found at KRS 61.878(1)(a). Conway ruled that “disclosing the requested aggregate information would not identify the water and sewer usage of specific individuals,” so “that information cannot properly be characterized as personal.” The law says the exemption applies only in case of “a clearly unwarranted invasion of personal privacy.”

The attorney general noted a similar case prompted by the city's refusal to let Moore see similar records, and stressed that “the interest of the public in ensuring that the Department has and fairly enforces uniform billing structure for all customers outweighs the nonexistent privacy interest implicated by the disclosure of the requested billing records.” He noted that the city had “generic billing information without individual customer names which could be used to verify billing methodology and calculations.”

AG declares Pike utility's records open

The records of a controversial utility in Eastern Kentucky are covered by the state Open Records Act "because two public agencies supply at least 25 percent of the funds it expends in the state," The Associated Press reports. "Deputy Attorney General Patrick Hughes wrote that Utility Management Group, based in Pike County, must turn over records requested by the Pike [County] Fiscal Court."

Hughes found that two public agencies pay the company more than $11 million a year. "The company and various agencies have been locked in a records fight after officials became concerned because of an audit," AP reports, based on a story in the Appalachian News-Express. UMG head Greg May told the newspaper that the utility will appeal the ruling.

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.

New blog for Rockcastle County starts with open-government concerns

Issues of open government are the topic of the first post in a new blog for Rockcastle County, where a local water association has barred its customers from attending its board meetings "despite numerous protests by many of its water-user members," blogger Elmer Whitler writes on Rockcastle County News, which he says is "devoted to news and opinion on events and conditions important for improving life for all those who live in Rockcastle County." (Wikipedia map)

The KOG Blog reported on the Eastern Rockcastle Water Association about a year ago, when Attorney General Jack Conway ruled that the association was not covered by the state Open Records Act because it gets less than 25 percent of its annual revenue from the state, and is in no way subject to the Open Meetings Act. "Water users seeking admission to the monthly meetings of the ERWA board have been threatend with arrest and confronted by deputies and the Rockcastle County sheriff," Whitler writes. He notes that Kentucky has 22 non-profit water associations, which "are spending millions of taxpayer dollars they obtain through state and federal grants for water system development. There is little focused regulatory oversight in Frankfort of how these funds are spent."

Whitler is director of research for the Office of Rural Health Policy in the medical school at the University of Kentucky. His work is separate from his blog, but informs it. He writes, "The abuse of openness and the public's right to know is most prevalent in counties that are characterized as high-poverty, low-education, and low-job-opportunity counties. There is a long tradition in these counties of the use of negative forms of political manipulation and control over meager economic resources. It seems that high levels of poverty, illiteracy, and low civic participation are necessary for this form of destructive politics to thrive. This whole process is aided and abetted by keeping the local citizens ignorant of what is being done." Elmer Whitler is trying to change that in his community. Does your community face similar problems? What are you doing about them?

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)