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HomeMy WebLinkAbout2009-08-05 Council Packet - Work SessionREMINDER: COUNCIL WORK SESSION: ORDINANCE NO. 2396 -2009, AMENDING KMC /ADDITION OF CHAPTER 10.40, ENTITLED, "RELEASE OF PUBLIC RECORDS AND REGULATIONS CONCERNING PUBLIC RECORD INSPECTIONS." AUGUST 5, 2009 5:00 P.M. KENAI CITY COUNCIL CHAMBERS the dty of KENAL ALASKA SUBSTITUTE Suggested by: Administration CITY OF KENAI ORDINANCE NO. 2396 -2009 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING THE KENAI MUNICIPAL CODE WITH THE ADDITION OF CHAPTER 10.40, ENTTITLED, "RELEASE OF PUBLIC RECORDS" AND "REGULATIONS CONCERNING PUBLIC RECORD INSPECTIONS." WHEREAS, the Kenai Municipal Code currently does not include a specific provision for the release of public records; and, WHEREAS, including specification for the release of public records in the Kenai Municipal Code is in the best interest of the city to provide definition and direction for requesting, exempting, responding to requests, etc. with regard to the release of public records. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, the Kenai Municipal Code be amended with the addition of Chapter 10.40, entitled "Release of Public Records" as provided in Attachment A and "Regulations Concerning Public Record Inspections" as provided in Attachment B. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this ay of A1, 2009. ATTEST: Carol L. Freas, City Clerk PAT PORTER, MAYOR Introduced: April 1, 2009 Postponed: April 15, 2009 Adopted: Mtry28720139— Effective: 4ne 2 - SAS Chapter 10.40 RELEASE OF PUBLIC RECORDS Sections: 10.40.010 Intent 10.40.020 Definitions 10.40.030 Information available to the public. 10.80.040 Records exempted. 10.40.050 Regulation of time, place and manner of inspection of public records. 10.40.055 Litigation Disclosure 10.40.060 Response to requests for public records 10.40.010 Intent. It is the intention of the City to provide [FULL AND FREE[ access of the public to municipal records and information consistent with the Alaska Public Records Act so that the people of the city may be well informed at all times as to municipal business. With the exception of the specific exemptions set forth under Section 10.40.040, all information and records in the control of the municipality shall be made available to the public upon request. 10.40.020 Definitions. For the purposes of this chapter: (a) "Municipal agency" shall be defined as any department, division, board, commission or private contractor, of the City, which has custody of public records as defined in this chapter. (b) "Public records" means books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics, that are developed or received by the city or a municipal agency and that are preserved for their informational value or as evidence of the organization or operation of the city; "public records" does not include proprietary software programs. 10.40.030 Information available to the public. Except as provided by Section 10.40.040, or by other provisions of municipal, state or federal law, all public records shall be open to inspection by any person subject to guidelines regulating the time, place and manner of inspection which may be adopted by the City Clerk pursuant to Section 10.40.050. Documents are not required to be created in order to comply with an information request, but will be provided from documents /infoi cation that_already exists. The types of records and Attachment "A" Chapter 10.40, Release of Public Records Substitute Ordinance No. 2396 -2009 Page 1 of 5 information open to public inspection pursuant to this chapter shall include, but shall not be limited to, the following: (a) Financial and operational cost information, including information as to revenues, expenditures, indebtedness, department budget requests, and fo ural departmental recommendations in regard to project priority; (b) Information relating to contracts to which the municipality is a party, including payment provisions, information relating to bids and requests for proposals received or solicited by the municipality, and information relating to the status of goods or services furnished pursuant to contract; (c) Regulatory, financial assessment and tax information concerning real property located within the municipality; (d) Salary levels and fringe benefits accorded municipal officers and employees by law, including information in regard to the pay range and step grade of an employee or officer and statistical analyses or compilations relating to municipal practices and policies concerning compensation for various occupational groups, departments and divisions; (e) Statistical information and analyses concerning case loads, numbers and categories of persons for whom services were performed or treatment provided, results achieved and per patient and per unit cost; and, (f) Feasibility, management, cost effectiveness and similar reports prepared . by the municipality with municipal moneys. (g) The foregoing enumeration of information available for public inspection is not designed to limit the categories of records and information that shall be made available to the public pursuant to this chapter. The policy of providing public access to public information shall be broadly and liberally constrnied. 10.40.040 Records exempted. The City shall not be required to release or disclose the following documents or records: (a) Communications of any kind between the municipal attorney and officers or employees of the city, or any other individual, firm or corporation containing a legal opinion, memorandum or other disclosure or information pertaining to any matter then in litigation or where litigation may be reasonably anticipated. This exemption does not extend, however, to any documents, records or other written communication that may have been made public prior to the commencement of litigation and public records which must otherwise be disclosed cannot be withheld on the grounds that they have been submitted to the municipal attorney; (b) All personnel records of city officers and employees, including, without limitation, employment applications, examination materials, and Attachment "A" Chapter 10.40, Release of Public Records Substitute Ordinance No. 2396 -2009 Page 2 of 5 performance evaluation records that reveal medical information about any specific individual; records the reveal the personal, intimate, or private life of an individual; and, in addition, any record the disclosure of which would constitute an unwarranted invasion of privacy; but this subjection does not protect from disclosure the following: (1) employment applications of city officials appointed by the city council; (2) employment applications of the director of each department of the city; (3) performance evaluations of city officials appointed by the city council to the extent the performance evaluations relate to the individuals job performance and do not impugn an individual's honesty, integrity, or morality outside of professional life; (4) the names and position titles of all city employees; (5) the current and prior positions held by a city employee. (6) the dates of appointment and separation of a city employee; and, (7) the records described in subsection 10.40.030(d). In the event of a request for disclosure of items described in subparts 1, 2, and 3 of this subsection, the City Manager, City Officials and Directors will be notified at least two (2) days prior to release of such records and may appeal the decision under KMC 10.40.060. (c) Records or information compiled for law enforcement purposes, but only to the extent the production of the law enforcement records or information: (1) could reasonably be expected to interfere with enforcement proceedings; (2) would deprive a person of a right to a fair trial or an impartial adjudication; (3) could reasonably be expected to constitute an unwarranted invasion of the personal privacy of suspect, defendant, victim, or witness; (4) could reasonably be expected to disclose the identity of a confidential source; (5) would disclose confidential techniques and procedures for law enforcement investigations or prosecutions; (6) would disclose guidelines for law enforcement investigations or prosecutions if the disclosure could reasonably be expected to risk circumvention of the law; or, (7) could reasonably be expected to endanger the life or physical safety of an individual; (d) Information such as name, address, etc., that would identify complainants in actions to enforce any City regulation or ordinance, Attachment "A" Chapter 10.40, Release of Public Records Substitute Ordinance No. 2396 -2009 Page 3 of 5 except as such disclosure may become necessary to a fair and just disposition of the enforcement proceeding; (e) Records held by the City concerning any customer using municipal services, release of which would be unwarranted invasion of privacy; (fl Engineering or other technical specifications or data which might provide a competitive advantage to any person, firm, or corporation engaged or potentially to be engaged in municipal business; (g) Information obtained by and in the custody of insurance carriers insuring the municipality and their attorneys and agents regarding possible and pending claims against the municipality; (h) Medical and related public health records; (i) Records pertaining to juveniles unless disclosure is authorized by law; U) Records required to be kept confidential by law. (k) Any record, nondisclosure of which is authorized by a valid Alaska or federal statute or regulation, or by a privilege, exemption, or principle recognized by the courts, or by a protective order authorized by law. f1 Sales tax information excluded from disclosure by KPB 5.18.040 as amended. 10.40.050 Regulation of time, place and manner of inspection of public records. The City Council shall adopt regulations as to the time, place, and manner of inspection of public records held by the municipality. Such regulations may also provide: (a) That a fee may be required. The fee shall not exceed the actual cost to the information request. In the event the person is unable to pay any requested fee, and signs an affidavit to the effect that he nr she is �....vv..vv indigent, there will be no cost to the above - described person. See Regulation 1.06, Regulations Concerning Public Record Inspections. (b) The form in which the specific documents shall be made available. Documents need not be reproduced in the exact form or medium in which they are stored. However, any alteration of the form or medium of public record shall not change the substantive content of the information contained in the public record. When the actual content is changed, the nature of the change and why it was necessary shall be communicated to the requestor. Regulations adopted pursuant to this section shall be posted in a conspicuous manner at City Hall. 10.40.055 Litigation Disclosure. Attachment "A" Chapter 10.40, Release of Public Records Substitute Ordinance No. 2396 -2009 Page 4 of 5 A public record that is subject to disclosure and copying remains a public record subject to disclosure and copying even if the record is used for, included in, or relevant to litigation, including law enforcement proceedings, involving the city or any municipal agency, except that with respect to a person involved in litigation, the records sought shall be disclosed in accordance with applicable court rules. In this section, "involved in litigation" means a party to litigation or representing a party to litigation, including obtaining public records for the party. 10.40.060 Response to requests for public records. All requests for public information or records shall be approved by the City Clerk. The City Clerk, or his /her designee shall, consistent with the orderly conduct of municipal business, make a good faith and diligent effort to provide a rapid and intelligible response to requests for inspection of records made pursuant to this chapter. To effect this policy, the following guidelines are adopted: (a) Information pursuant to this chapter shall be furnished promptly to the requesting party unless the information requested is declared privileged or confidential pursuant to applicable federal, state or municipal law. If the City Clerk or his /her designee considers the information to be privileged, after consultant with the City Attorney, he /shall prepare a slip setting for the date, the item of information requested, the specific provision of applicable state, federal or municipal law exempting the requested information from disclosure. A copy of this slip shall be provided to the party requesting the information. (b) A decision regarding a request for information or inspection of public records may be appealed to the City Council and a written reply will be given within seven (7) working days from the Council's consideration thereof either granting or denying the appeal. An appeal from the decision of the Council shall be to the Superior Court. (c) All requests for records and information made pursuant to this chapter shall be responded to within a reasonable time period. If the records and information cannot be located in time to make a response within five (5) working days of the request, the requesting party shall be promptly advised, and, if the requesting party still desires the information or records, a reasonable and diligent search shall continue. (d) If a request is deemed non - routine or large, written notification will be made to the requestor within five (5) working days with an estimate of production costs pursuant to KMC 10.40.060(c) and Regulation 1, Fees, Regulations Concerning Public Record Inspections. Attachment "A" Chapter 10.40, Release of Public Records Substitute Ordinance No. 2396 -2009 Page 5 of 5 CITY OF KENAI REGULATIONS CONCERNING PUBLIC RECORD INSPECTIONS 1. FEES 1.01 Copies. The fee for copying public records is as follows: The first nine copies are free. [THERE SHALL BE A CHARGE OF $2.50, PLUS SALES TAX, FOR THE TENTH (10TH) COPY.] There will be a charge of $.25, plus sales tax for each copy over ten (10). Copies of audio recordings to CD are $25.00 plus sales tax for the first CD and $5.00 for each additional CD for each request. Cassette tape recording copies are $25.00 plus sales tax for the first cassette tape and 55.00 for each additional cassette tape. 1.02 Certified Copies. The fee for a certified copy of a document will be the City's standard certification fee, plus the standard copying fee. At this time, the certification fee is ten dollars ($10.00) per document. Only the City Clerk or Deputy City Clerk will certify documents. 1.03 Production Fee. If the production of records for one requestor in a calendar month exceeds five - person hours, the requestor must pay a production fee. The production fee will be the city employee's actual salary, plus benefit costs, for the time required over five (5) hours during the month to search, review, and copy the records. If multiple city employees compile the requested records, a composite hourly rate for all employees involved will be determined and a credit for five (5) hours at that rate will he applied, [THE TIME FOR REVIEW INCLUDES THE TIME. SPENT TO EXAMINE THE RECORDS FOR THE PURPOSES OF DETERMINING WHETHER THE DOCUMENT IS RESPONSIVE TO THE REQUEST AND WHETHER THE DOCUMENT WILL BE DISCLOSED OR WHETHER IT MUST BE WITHHELD BASED ON PRIVILEGE, EXEMPTION, OR OTHER EXCEPTION.] The production fee will be in addition to the standard copying fee. Example of composite rate calculation is: Employee A 15 hours @ $50 /hour = $ 750.00 Employee B 4 hours @ $75 /hour = $ 300.00 Employee C , 2 hours @ $35 /hour = $ 75.00 Totals 1 21 hours j $1,120.00 $1,120 = 21 (total hours) = $53.33 (composite rate) $1,120 - ($53.33 x 5 free hours) = $ 853.35 to be paid by FOIA Requestor 1.04 Estimate and Advance Payment. If a production fee is required or anticipated under the preceding paragraph, the city staff will prepare an estimate of Attachment "B" Substitute Ordinance No. 2396 -2009 Regulations Concerning Public Record Inspections Page 1 of 6 the production fee and copying fee that are expected to result from producing the requested records. The requestor must deposit the estimated production and copying fees in advance of the search. If the actual production and copying fees are less than the estimate, the requestor will be given a refund of the difference. If the actual production and copying fees are greater than the estimate, the records will not be released to the requestor until the requestor pays the difference. 1.05 Inspection Only. There will be no fee for simple inspection of records, except when the production of the records for inspection by one requestor in a calendar month exceeds five person- hours. In that case, the requestor will be required to pay the production fee as described in the preceding paragraphs. 1.06 Indigency. If a person is unable to pay a fee, and signs an affidavit to the effect that he or she is indigent, then the City Clerk will waive the copying fee and production fee, except when the City Clerk, based upon reliable information, determines the affidavit of indigency is made in bad faith or fraudulently. Annual income as a Percent of current health And human services (HHS) Poverty Guidelines for Alaska Percent of fee reduced 1 — 100% 100% Waiver 101 — 149% 75% Waiver 150 -174% 50% Waiver 175 -199% 25% Waiver 200% plus No Waiver An application for indigency may be filed with the City Clerk for waiving or partially waiving the costs of record reproduction. The City Clerk may allow an applicant, who qualifies as an indigent, a reduced record reproduction fee, a payment plan or a waiver of the filing fee where the City Clerk is able to make a written finding, based on information provided by the applicant that payment of the record reproduction fee would be a financial hardship. Based upon the information provided, the fee may be reduced or waived in accordance with the above scale. As required by AS 40.25.110, any fee waiver or reduction must be uniformly applied to persons who are similarly situated. 2. REQUIREMENTS FOR PUBLIC RECORD REQUESTS -- APPROVALS AND DENIALS. 2.01 City Clerk Approval. According to Kenai Municipal Code, Section 10.40, all requests for public information or records are to be approved by the City Clerk, after consultation with the City Manager and City Attorney. (See Regulation 5.01) The City Clerk, or the Clerks designee, will, consistent with the orderly conduct Attachment "B" Regulations Concerning Public Record Inspections Substitute Ordinance No. 2396 -2009 Page 2 of 6 of city business, make a good faith and diligent effort to provide a rapid and intelligible response to requests for inspection of records. 2.02 Routine Requests. Routine requests for inspection or copying of records may be approved (but not denied) and responded to by the City Clerk, Deputy City Clerk, or the Department Head of the department in which the records are located. They may act as the City Clerk's designee for the approval of routine requests. For purposes of these regulations, a routine request is a request for records that are clearly to be made available to the public, and which can be responded to quickly without a substantial amount of effort or time by the city staff. Routine requests may be submitted orally or in writing. 2.03 Non - Routine Requests. Non - routine requests for inspection or copying of records must be made in writing and referred to the City Clerk for approval or disapproval. Non- routine requests include, but are not limited to, requests for records that are or might be exempt from disclosure, requests that will or might be denied for any reason, requests that will take more than one person -hour of staff time to respond, and requests from a person involved in litigation with the City. 2.04 Litigation Disclosure Requests. A person "involved in litigation" means a party to a lawsuit involving the City, a person representing a party in a lawsuit, or a person requesting records on behalf of a party to a lawsuit. If the City Clerk, based on reliable information, after consultation with the City Attorney, determines that a request for inspection or copying is being made by or on behalf of a person involved in litigation, the City Clerk, may deny the request and require the request be processed in accordance with applicable court rules under Kenai City Code, Section 10.40.055. 2.05 Aggregation of Certain Requests. If the City Clerk, based on reliable information, after consultation with the City Attorney, determines one or more individuals have made one or more requests for public records on behalf of another person or group for the purpose of dividing a request into smaller parts to avoid the payment of a production fee (for production of records requiring more than five person -hours of staff time per month), the City Clerk will aggregate all such requests and treat them as one request made by person. 2.06 Bad Faith Affidavit of Indigency. If the City Clerk, based on reliable information, after consultation with the City Attorney, determines a person has made an affidavit of indigency in bad faith or fraudulently for the purpose of avoiding payment of production, copying, or other fees, the City Clerk will deny the waiver of the fees. 2.07 Harassment Request. If the City Clerk, in good faith, after consultation with the City Attorney, reasonably determines a request for copies or inspection of Attachment "B" Regulations Concerning Public Record Inspections Substitute Ordinance No. 2396 -2009 Page 3 of 6 records is not made in good faith, and is made for the purpose of harassment of the City or city officials, or to purposely interfere with the orderly conduct of city business, the City Clerk will deny the request. Such a detei,nination will be made only after notice and an opportunity for the requestor to be heard by the City Clerk. 2.08 Description of Records Requested. A requestor must describe the records sought in sufficient detail to enable the City to locate and identify the records sought. If the records are described by the requestor in general teinis, the city staff shall attempt to communicate with the requestor to identify the records requested and lessen the administrative burden of processing an overly broad request. If the request is not sufficient to allow the staff to identify the requested records, the requestor shall be notified promptly by the City Council, the request cannot be approved or processed until a sufficient description of the record is received. [2.09 DELIBERATIVE PROCESS RECORDS. THERE IS A RECOGNIZED NEED TO ENCOURAGE OPEN, FRANK DISCUSSIONS AMONG GOVERNMENT OFFICIALS ABOUT PROPOSED OR CONTEMPLATED GOVERNMENTAL ACTION. DISCLOSURE OF OFFICIAL DELIBERATIONS WILL INHIBIT THOSE DISCUSSIONS, INVADE THE MENTAL PROCESSES OF GOVERNMENT OFFICIALS, AND ADVERSELY AFFECT THE QUALITY OF ADMINISTRATIVE DECISION MAKING. RECORDS CONTAINING DELIBERATIVE PROCESS INFORMATION ARE CONFIDENTIAL AND NEED NOT BE DISCLOSED. ACCORDINGLY, REQUESTS FOR INTERNAL, PRE - DECISIONAL RECORDS THAT ARE DELIBERATIVE IN NATURE, WILL BE DENIED UNLESS THE CITY CLERK, AFTER CONSULTATION WITH THE CITY ATTORNEY, DETERMINES THE REQUESTOR HAS ESTABLISHED, ON BALANCE, THE INTEREST OF THE PUBLIC IN HAVING ACCESS TO THE RECORD OUTWEIGHS THE INTEREST OF THE PUBLIC IN HAVING CITY BUS INES S CARRIED ON EFFICIENTLY n d WITHOUT UNREASONABLE INTERFERENCE.] 3. TIME AND PLACE OF INSPECTION 3.01 Routine Requests. A routine request for records will be responded to promptly at the office where the records are kept, or another city office if more convenient to the City, during business hours at a time that does not interfere with the orderly conduct of city business. If the records cannot be produced within five (5) working days, the requestor will be advised. 3.02 Non - routine Requests. Records in response to an approved non - routine request will be made available for inspection or copying at City Hall, under the direction of the City Clerk or the City Clerk's designee. For the convenience of the City, the City Clerk may designate an inspection location elsewhere in the City. The time for inspection will be during business hours. The City Clerk will advise the Attachment "B" Regulations Concerning Public Record Inspections Substitute Ordinance No. 2396 -2009 Page 4 of 6 requestor of the specific time and date on which the inspection may occur. If, and to the extent necessary to maintain the orderly conduct of city business, the City Clerk may limit the days and hours when inspection and copying of public records may occur. 3.03 Large Requests. If a request is made for inspection or copying of a large volume of public records, the City Clerk, after consultation with the City Attorney, may require the requestor to make a written designation of the order in which the requestor wants the records produced. When such order is designated by the requestor, the City will attempt to produce the records in that order. Requests for inspection or copying of a large volume of public records, or requests that will require the City to search or review a large volume of public records, will be responded as city staff time permits. The orderly conduct of city business will not be interrupted to make fast response to such a request. It is reasonable the maker of such a large request should expect an extended time for response. The City Clerk will advise the requestor of the estimated time in which the response will be made. 4. FORM OF RECORDS PRODUCED 4.01 Form of Records. The records of the City will normally be made available for inspection or copying in the format in which the City maintains or disseminates the records. Exact reproduction is not required, but any alteration of the form or medium of public records must not change the substantive content of the information, and if the actual content is changed, the nature of the change and the reason for the change will be communicated to the requestor. 4.02 Summarization or Manipulation of Records. The City is not required to compile or summarize its records in response to a request for information. The City is not required to manipulate its data to create new records in response to a request for information. 4.03 Partially Disclosable Records. If public records contain information that is disclosable in part and non - disclosable in part, the non- disclosable information shall be removed prior to disclosure. 5. WRITTEN DETERMINATIONS AND APPEALS 5.01 Written Response. If the City Clerk, after consultation with the City Attorney_and City Manager, makes an adverse determination, in whole or in part, to a written public records request, the City Clerk will provide a written response setting forth the adverse determination. It will include a description of the records requested, a description of the records that will not be provided, and the reasons for the adverse Attachment "B" Regulations Concerning Public Record Inspections Substitute Ordinance No. 2396 -2009 Page 5 of 6 determination, including reference to provisions of law or regulations, facts, and other information relied upon. The City Clerk's written response will also include a notice the requestor has a right to appeal to the City Council. 5.02 Response to Oral Requests. Oral requests may be accepted for a routine request. Oral requests for records will not be accepted for a non - routine request or receive a written response from the City Clerk unless the requestor is unable to make a written request because of inability to write or because of mental or physical disability. In that case, the City staff will assist the requestor in making a request that will be responded to and treated as a written request for all purposes under these regulations. 5.03 When No Response is Deemed Denial. If the requestor receives no response to a written request for records within five (5) working days of making that request, the requestor may file with the City Clerk a written demand for a written response. If the City Clerk does not give a written response to that demand within three (3) working days of the City Clerks receipt of the demand, the request for records will be deemed denied. 5.04 Appeal to City Council. A denial, in whole or in part, a deemed denial, or any adverse written determination by the City Clerk in response to a written request for public records may be appealed by the requestor to the City Council under City of Kenai Municipal Code, Section 14.20.290. 5.05 Appeal to Superior Court. A final decision of the City Council on an appeal from a decision of the City Clerk may be further appealed to the Superior Court. Such an appeal must be made under the court rules of procedure governing appeals to the Superior Court. Approved by Ordinance No. 2396 -2009. DATED: This 20th day of May, 2009. PAT PORTER, MAYOR ATTEST: Carol L. Freas, City Clerk Attachment "B" Regulations Concerning Public Record Inspections Substitute Ordinance No. 2396 -2009 Page 6 of 6 REQUEST IDENTIFICATION NO. (Year) (Sequence) POB1:IC RR►S REQUEST: CITY OF XENAI ceoft e� 210 Fidalgo Avenue Kenai, Alaska 99611 cfreasna ci,kenai.ak.us Phone: (907) 283 -7535, ext. 231 Fax: (907) 283 -5068 Name: Address: City: I State: Zip: Email Address: DOCUMENTS REQUESTED I hereby request the following documents (be specific, or you may attach a request letter): Title of Record: Date of Record: Description of Record: I acknowledge and agree to pay the following charges for the documents requested: Copies = Up to nine pages are free. Up to ten pages are $2.50, plus sales tax, and $25 (twenty -five cents) plus sales tax for each additional page. Copes of audio records to CD are $25.00 plus sales tax for the first CD and $5.00 for each additional CD for each request. Cassette tape recording copies are $25.00 plus sales tax for the first cassette tape and $5.00 for each additional cassette tape. I understand research is limited and will be charged per requestor in a calendar month exceeding five- person hours, i.e. the fee is the City employee's actual salary plus benefit costs. An estimate will be prepared and the requestor must deposit the estimated production and copying fees in advance. If the actual costs are greater than the estimate, the records will not be released until the difference is paid and if the actual costs are less, the requestor will receive a refund of the difference. No fee for simple inspection, except when the production of records by one requestor exceeds five person hours in a calendar month pursuant to AS 40.25.110(c). CERTIFICATE OF NONLITIGATION AFFLIATION I hereby certify: I am not involved in litigation, in a judicial or administrative forum, nor am I acting on behalf of or otherwise representing any party who is involved in litigation with the City of Kenai to which the re•uested record is relevant; and, Print Name REQUEST ID NO. Sim nature FOR OFFICE USE ONLY Date Date Staff Member Research Time (minutes) Request received Request reviewed Records located Fee calculated Requestor notified Documents provided Amount $ KENAI CITY COUNCIL MEETING APRIL 15, 2009 PAGE 3 Mayor Dave Carey, Kenai Peninsula Borough -- Read a letter received from Joshua Dover, stationed in Iraq, and promoted his "Red, White & Blue" program Mark Schrag, 312 Princess, Kenai -- Reviewed information he located related to the definition of "conservation lands" around the airport dated between 1964 and 1984. Schrag was requested to leave a copy of the document with the Clerk. ITEM D: REPORTS OF KPB ASSEMBLY, LEGISLATORS AND COUNCILS Assembly Member Smalley reported the next Assembly meeting was scheduled for April 21, 2009. ITEM E: PUBLIC HEARINGS (Testimony limited to 3 minutes per speaker.) E -1. MOTION: Ordinance No. 2396 -2009 -- Amending the Kenai Municipal Code with the Addition of Chapter 10.40, Entitled, "Release of Public Records" and "Regulations Concerning Public Record Inspections." Council Member Molloy MOVED to enact Ordinance No. 2396 -2009 and Council Member Eldridge SECONDED the motion. A brief discussion followed with comments including: A work session be held to discuss further the follow ng issues with the proposed ordinance: Page 6, Paragraph 10.40.010, reference to "free access." Page 9, Paragraph 10.40.055, related to litigation disclosure rules. Reference to production fees. Page 10, 10.40.060 -- several different standards. Page 11, Regulation 1.01, charge of sales tax. Page 11, Regulation 1.03, charging for time spent in determining whether a request is subject to privilege. Consideration for giving a waiver of fees if in the "best interest of the city." Consideration to include a paragraph to give the public right to remedy /an appeal to council. Page 14, Regulation 2.09, Deliberative Process Records -- concern the paragraph very broad. Page 16, Appeal to Superior Court -- belief it should say "final decision of council." Request form -- concern if "certificate of non - litigation affiliation" should be included. Would like electronic filing allowed. KENAI CITY COUNCIL MEETING APRIL 15, 2009 PAGE 4 The person researching, collecting, copying, should keep a log of time involved in case there is a challenge. MOTION TO POSTPONE: Council Member Molloy MOVED to postpone Ordinance No. 2396 -2009 to the May 20, 2009 council meeting and Council Member Boyle SECONDED the motion. MOTION TO AMEND: Council Member Smalley MOVED to amend Ordinance No. 2396 -2009 with the substitute Attachment B (provided at the beginning of the meeting). Council Member Boyle SECONDED the motion. VOTE ON AMENDMENT: *Student Representative Johnson: Yes Bo le Yes i Porter OM= Smalle Yes Moore Absent Eldrid:e Yes Ross Absent Mollo Yes MOTION PASSED UNANIMOUSLY. VOTE ON MAIN AMENDED MOTION: *Student Representative Johnson: Yes Boyle Yes Porter Yes Smalley Yes Moore Absent Eldridge Yes Ross Absent 1 Molloy Yes 1 MOTION PASSED UNANIMOUSLY. E -2. Discussion (no Council action required but public testimony will be taken) -- Justice Assistance Grant Program Participation. It was explained, a requirement of the grant was to hold a public hearing in order to take public comment. The floor was opened for public hearing. KENAI CITY COUNCIL MEETING MAY 20, 2009 PAGE 5 The Center was encouraged to work with Administration to include the building project into the budget. Koch reported he would look into other storage possibilities on city property. ITEM E: PUBLIC HEARINGS (Testimony limited to 3 minutes per speaker.) E -1. Ordinance No. 2395 -2009 -- Increasing Revenues and Appropriations by $2,415,000 in the Airport Apron Rehabilitation -- Stimulus Fund for the Grant Funds Awarded Through the "American Recovery and Reinvestment Act (ARRA) Stimulus Package." (Clerk's Note: Ordinance No. 2395 -2009 was postponed, no time certain, at the April 1, 2009 council meeting. The motion to adopt is active.) E -1(a). MOTION: Substitute Ordinance No. 2395 -2009 -- Increasing Revenues and Appropriations by $2,888,252.65 in the Airport Apron Rehabilitation - Stimulus Fund for the Grant Funds Awarded Through the "American Recovery and Reinvestment Act (ARRA) Stimulus Package. Council Member Eldridge MOVED to adopt Substitute Ordinance No. 2395 -2009 and Council Member Molloy SECONDED the motion. The floor was opened to public comment. There being no one wishing to speak, the public hearing was closed. Finance Director Eubank gave an update with regard to the difference between Phases B and C, noting all the funding should be in place by the end of summer. VOTE: *Student Representative Johnson: Yes Smalley Yes Moore Yes 1 Eldridge I Yes Ross Yes Molloy Yes Boyle Yes Porter Yes MOTION PASSED UNANIMOUSLY. r E-2. Ordinance No. 2396 -2009 -- Amending the Kenai Municipal Code with the Addition of Chapter 10.40, Entitled, "Release of Public Records" and "Regulations Concerning Public Record Inspections." KENAI CITY COUNCIL MEETING MAY 20, 2009 PAGE 6 (Clerk's Note: Ordinance No. 2396 -2009 was postponed as amended with Substitute Attachment B, to the May 20, 2009 council meeting. The motion to enact is active.) PE -2(a(. MOTION: Substitute Ordinance No. 2396 -2009 -- Amending the Kenai Municipal Code with the Addition of Chapter 10.40, Entitled, "Release of Public Records" and "Regulations Concerning Public Record Inspections." Council Member Molloy MOVED to enact Substitute Ordinance No. 2396 -2009 and Council Member Smalley SECONDED the motion. The floor was opened for public comment. Loretta Pearce, 155 Richfield Drive, Kenai -- Spoke in opposition to the ordinance, noting she felt it was unnecessary and was a form of censorship. There being no one else wishing to speak, the public hearing was closed. Council comments included: • Clarification the Act did not require documents be created, only existing documents disclosed. s Page 25, Board of Adjustment -- The rules for the Board of Adjustment would not automatically fall under the rules of KMC Chapter 14. Council could adopt those rules to apply to the document request Board of Adjustment. • Belief the seven - working days for making a decision on a document request Board of Adjustment should be kept in order for the citizen's appeal to be handled quickly. • Request to schedule a work session due to a number of other concerns not stated. MOTION TO POSTPONE: Council Member Eldridge MOVED to postpone action on Ordinance No. 2396 -2009 to no time certain. Council Member Boyle SECONDED the motion. VOTE: *Student Representative Johnson: Yes Smalley Yes Moore Yes Eldridge Yes Ross Yes I Molloy Yes Boyle Yes Porter Yes TO: FROM: DATE: SUBJECT: MEMO #1 Mayor, Council, & Administration Bob Molloy 04-29-09 PUBLIC / o PUC RECORDS REQUEST FORM y,� r`•-� ORDINANCE NO. 2396 -2009 Information Item #1 In my opinion, the City of Kenai should work to promote a user - friendly process for public access to records. What we should avoid is establishing new barriers to public access, and adopting procedures that may subject the City to lawsuits for violation of the Alaska Public Records Act (APRA). It appears to me that proposed request form is not user - friendly, creates new barriers, and may be subject to legal challenge, as explained below. (1) The ordinance requires that the request be put on the City's designed form, and appears to require that it has to be physically obtained from the City Cleric' However, in my opinion, this is too restrictive. The City should allow requests in other written form, such as letter, memo, note, fax, and email, and not just "routine requests."2 The City could also allow requests by telephone, where the Clerk's staff takes the information by phone and fills out a form for processing. (2) The proposed form for Public Records Request — (attached as "A ") - requires the requester to sign a certification that amounts to a verification under penalty of perjury. It is my understanding that a sworn verification is not required by the Alaska Public Records Act in order for a member of the public to obtain public records; and, therefore, this verification this may be subject to legal Challenge. i think tins ver111catiOn requirement is too onerous; especially the part requiring the requestor to state who the record is for -- the City has no legitimate reason to ask for that information. In addition, this verification requirement may put the City Clerk in an adversarial position with requestors who don't want to fill out the certificate or believe it is illegal. The City of Kenai should join the other Alaska municipalities that do not require a sworn verification in order for citizens, businesses, news media, etc., to obtain or inspect public records. For comparison, I have attached some other forms from other municipalities both inside and outside of Alaska, one State of Alaska agency form, and two online forms, as listed on the next page. These forms are simple and do not appear to invite disputes or legal challenges. I was Proposed Procedure #1 states that "The request shall be in writing, on a form provided by the City Clerk, entitled `Public Records Request'." 2 In conflict with Procedure #1, proposed Regulation 2.03 states that "Routine requests may be submitted orally or in writing." And see proposed Regulation 5.02 Response to Oral Requests, which is also in conflict with proposed Procedure #1. -7- impressed that the City of Cleveland, Ohio, allows anonymous requests for public records (see Attachment H). Attachment: Municipality: A City of Kenai, Alaska B City of Soldotna, Alaska C City & Borough of Juneau, Alaska D City of Nome, Alaska E Matanuska - Susitna Borough, Alaska F Alaska Division of Insurance, State of Alaska G County of Boulder, Colorado H City of Cleveland, Ohio I City of Bellingham, Washington J City of Portland, Oregon j K State of Idaho, Department of Health & Welfare, Online Form I 1 L State of Washington, Utilities and Transportation Commission Online Form g � P REQUEST IDENTIFICATION No. (Year) (Sequence) V0 9 A Fti�k . 'r'ea.. s' dr . ri ' _�P.u`xi�� `✓. �:°=F '' _, .1�.°`q4 r� 210 Fideigo Avenue Kenai, Alaska 99611 cfreassa -.kenai.ak.u$ Phone: (907) 283 -7535, exc. 231 Fax: (907) 283 -5068 Name: Address: City: State: Zip: Email Address: DOCUMENTS REQUESTED I hereby request the following documents be specific, or you may attach a request letter): Title of Record: Date of Record: Description of Record: 2 acknowledge and agree to pay the following charges for the documents requested: Copies = Up to nine pages are free. Up to ten pages are $2.50, plus sales tax, and $.25 (twenty -five cents) pits sales tax for each additional pane. Copies of audio records to CD are $25.00 plus sales tax for the first CD and $5.00 for each additional CD for each request. Cassette tape recording copies are $25.00 plus sales tax for the first cassette tape and $5.00 for each additional cassette tape, I understand research is limited and will be charged per requestor in a calendar month exceeding five- person hours, i.e. the fee Is the qty employee's actual salary plus benefit costs. An estimate will be prepared and the requestor must deposit the estimated production and copying fees in advance. If the actual costs are greater than the estimate, the records will not be released until the difference is paid and if the actual costs are less, the requestor will receive a refund of the difference. No fee for simple inspection, except when the production of records by one requestor exceeds five person hours in a calendar month pursuant to AS 40.25.110(c . CERTIFICATE OF NONLTTIGATION AFFLIATION I hereby certify: 1. I am not involved in litigation, in a judicial or administrative forum, nor am 1 acting on behalf of or otherwise representing and Y party who is involved in litigation with the City of Kenai to which the requested record is relevant; and, 2, The requested public record is strictly for: 7 My own personal use 7 Use on behalf of: (Name of business, organization) I certify under penalty of perjury the foregoing statements are true, Print Name Si•na €ure FOR OFFICE REQUEST YD NO. Staff Member USE ONLY Research Time (minutes) Date Date Request received Request reviewed Records located Fee calculated Requestor notified Documents provided Amount $ -18- REQUEST for PUBLIC RECO REQUESTOR: Please identify yourself and tell as how to notify you regarding this request. Name Telephone Fax Address City State Zip E -mail DOCUMENTS REQUESTED: Identify and describe the documents you seek. Be specific. Indicate if you want copies to be made; there may be a charge. ADMINISTRATION: For staff use only. Provide photocopy of this form to requester after completing line 1. Request received Request reviewed Document located Fee calculated Requestor notified Documents picked up Name of Person Date and Time Amount $ OPEN RECORDS ACT: This is the State law regarding access to public records. Exceptions are listed in RS 40.25.120. AS 40.25.110. Public records open to inspection and copying; fees. (a) Unless specifically provided otherwise, the public records of all public agencies are open to inspection by the public under reasonable mien during regular office hours. The public officer having the custody of public records shall give on request and payment of the fee established under this section or AS 40.25.115 a certified copy of the public record. (b) Except as otherwise provided in this section, the fee for copying public records rimy not exceed the standard unit cost of duplication established by the public agency. (c) If the production of records for one requestor in a calendar month exceeds five person - hours, the public agency shall require the requester to pay the personnel costs required during the month to complete the search and copying tasks. The personnel costs may not exceed the actual salary and benefit costs for the personnel time required to perfonn and the search and copying tasks. The requestor shah pay the fee before the records are disclosed, and the public agency may require payment in advance for the search. (d) A public agency may reduce or waive a fee when the pubiic agency determines that the reduction or waiver is in the public interest. Fee reductions and waivers shall be uniformly applied among persons who are similarly situated. A public agency may waive a fee of$5 or less if the fee is less than the cost to the public agency to arrange for payment. City of Soldotna PR_REQUEST_COS.doc Request for Public Records 07/12/06 REQUEST for PUBLIC RECO REQUESTOR: Please identify yourself and tell us how to notes you regarding this request. Telephone Fax E -mail Name Address DOCUMENTS REQUESTED: Identify and describe the documents you seek. Be specfrc. Indicate if you want copies to be made; there may be a charge. ADMINISTRATION: For CBJ staff use only. Provide photocopy of this form to requester after completing line 1. Request received Request reviewed Document located Fee calculated Requestor notified Documents picked up Name of Person Date and Time Amount $ OPEN RECORDS ACT: This is the State law on public records. Exceptions are listed in AS 40.25.120. AS 4025.110. Public records open to inspection and copying; fees. (a) Unless specifically provided otherwise, the public records of all public agencies are open to inspection by the public under reasonable rules during regular office hours. The public officer having the custody of public records shall give on request and payment of the fee established under this section or AS 40.25.115 a certified copy of the public record. (b) Except as otherwise provided in this section, the fee for copying public records may not exceed the standard unit cost of duplication established by the public agency. (e) If the production of records for one requestor in a calendar month exceeds five person - hours, the public agency shall require the requestor to pay the personnel costs required during the month to complete the search and copying tasks. The personnel costs may not exceed the actual salary and benefit costs for the personnel time required to perform and the search and copying tasks. The requestor shall pay the fee before the records are disclosed, and the public agency may require payment in advance for the search. (d) A public agency may reduce or waive a fee when the public agency determines that the reduction or waiver is in the public interest. Fee reductions and waivers shall be uniformly applied among persons who are similarly situated. A public agency may waive afee of$5 or less if the fee is bus than the cost to the public agency to arrange for payment. City of Nome Public Records Request Form Requester Name: Date: Agency : Requester Address: Street Suite/Apt City State Zip Code Requestor Phone: Cell: Email: Request Made: inn Person i In Writing Preferred Delivery: [flick Up Di S Mail nrelephone 'Fax I Email I Email 'Fax lOn —Site Inspection Record Request Information: To expedite the request be as specific as possible in describing the records being requested. Also, please include the type of access requested (copying or inspection) and the medium requested. I agree to pay the actual cost of searching, reviewing, duplicating and/or mailing copies of the requested public records. Requestor's Signature Receipt Number: Cleric's Office Comments: DATE Amount: MATANUSKA- SUSTINA BOROUGH 350 E. Dahlia Ave, Palmer, AK 99645 Telephone: 907- 745 -4801 PUBLIC RECORDS REQUEST FORM Name: Date: Address: City /State /Zip Code: Telephone No.: Email: RECORD(S) REQUESTED * If this matter is currently under litigation, reeord(s) must be requested through the Law Dept. Title of Record(s): Date of Record(s): Description of Record(s) — Please provide any additional information that will assist us in locating the record(s) for you as quickly as possible: The Matanuska- Susitna Borough grants every person the right to inspect any public record, unless exempt from disclosure per MSB 1.50.040, within a reasonable time. The record owner of the record(s) will respond to this request within ten (10) business days. If the record(s) are exempt from disclosme, the manager and requestor will be contacted immediately in writing. If the reeord(s) cannot be provided within 10 business days of receipt of this request, the manager and requestor will be promptly advised. If the party still desires the record(s), a reasonable and diligent search will be made for them. See the Public Records Request Policy for full details. FOR OFFICE USE ONLY Date Request Received Completed by/Referred to (circle one) Name: L Prior to processing the request, send a copy of this request form to the Law Department for review. Compile the records but do not distribute until the attorney has approved the distribution. Okay to distribute Nicholas Spiropoulos, Borough Attorney 2. When filling the request, complete the applicable line below: A. copies provided at $ per page, for a total cost of $ on (date): B. Record or information is exempt from disclosure and public access is denied. Cite code or statutory reason for denial: C. Record or information cannot be located and the requestor was so notified on (date): FINANCE OFFICE: Please credit to account number 100 - 000- 000.341 -900 3. Send a copy of this completed request form, with copies of the receipt and reeord(s) provided, when appropriate, to the Manager's office. If the request is denied, a memo explaining the reason for the denial must he sent to the Manager's office. See the Public Records Request Policy for clarification. flees: Photocopies $.20 /page Mieroprints $.25fimage Audio /Video/DVDs - $10.00.75.00 Maps $5.00 and up Revised 5/2/08 Alaska Division of Insurance P.O. Box 110805 Juneau, AK 99811 -0805 (907) 465 -2515 Fax (907) 465 -3422 insurance(a xz1aska.goi, PUBLIC RECORDS REQUEST 2 AAC 96.300 — 2 AAC 96.360 (Your request must describe the record in sufficient detail to allow its identification and location.) Pursuant to AS 40.25.110, which gives the public the right to inspect the state's public records, please provide me with access to the following records: Will your request for information be used in pending litigation against the State of Alaska? Yes No If yes, you must make your request in accordance with the applicable court rules. 2 AAC 96.220 I understand that if I want any copies, the charge is $.25 per copy, plus postage, payable when billed, which may be in advance of my receipt of the copies. I understand I may be charged handling costs if the records have been archived and for personnel costs if the time required to search or copy my request exceeds five person -hours in any calendar month. For a certified copy of records, there is an additional charge of $25.00. TO BE COMPLETED BY AGENCY Acknowledgment Logged Assigned to Due date Completed i:/pubrecreq Name Company Name Address Phone Number E -mail Address Boulder County County of Boulder Public Records Request Form The following request is made under the Colorado Public Records law: Date: Name: Organization represented (if any): Address /Phone No.: Name of document(s) requested: If the document name is unknown, provide brief, but specific description of document or information requested (note date of issuance and location of document, if known). A request, which is broad, vague or too voluminous, may cause a delay in the time the County can produce the records. Please attach an additional page if needed to list these items in detail. If the records are available pursuant to C.R.S. 24 -72 -201 et seq., the records shall be made available for viewing within three working days. If extenuating circumstances exist so that the Custodian cannot gather the records within the three -day period, the period shall be extended an additional seven working days. The requestor shall be notified of the extension within the first three days of receiving the request. Please refer to the County's Public Records Policy for complete information. The Policy is available at [website] or at the County Human Resources Office 303 - 441 -3508. The fee shall be $.25 per page, unless actual costs exceed that amount, in which case, actual costs may be charged. All payments for public records must be received in advance of releasing the requested records. Date Signature FILING INSTRUCTIONS: You may fill out the electronic form and e-mail it to the person /office whom you believe to be the custodian of the document(s), if you know the e -mail address. Otherwise, you may print the form, fill it out, and then the it by FAX if you know the FAX number, or by mail or in person to the office of the custodian of the records you are seeking. For Official Use Only Time spent by staff in assembling the records request Estimated cost of assembly $ Records request received by: Received (DATE /TIME) G CITY OF CLEVELAND Maven' Cnmk. G.. Jackson Public Records Request Form Date: Please Print Clearly Requester's Name. Company: Address: City /State /Zip: Telephone No.: Fax No.: The City provides this form to manage the public records request process more efficiently, and to help avoid delays and confusion. The availability of public records is not limited by or conditioned on completion of this form. A written request for records is not mandatory and you may decline to identify yourself. If you do not want to make a written request, or do not want to reveal your identity, please call the City's Public Records Administrator at 664-2772. If you choose to use this form, please provide specific details about what you want, including time frame, locations, etc. (if applicable). You may write on the back of this form if necessary. Thank you. Please send form to: Kim L. Roberson, Public Records Administrator — City of Cleveland Department of Law — 601 Lakeside Avenue, Room 106 — Cleveland, Ohio 44114 -1077 I Phone No, (216) 664 -2772 — Fax No. (216) 420-8560 — KRoberson@city.cleveland.oh.us CITY OF BELLINGHAM Public Records Officer • 2014 C Street • Bellingham, WA 98225 Phone (360) 778 -8132 • Fax (360) 778 -8151 • web site: www.cob.org REQUEST FOR PUBLIC RECORDS City Policy ADM 07.04.01 RCW 42.56 INSTRUCTIONS: Employee receiving request completes Section 1, except for the request number Requester completes Section 2 if request is made in person, otherwise employee receiving the request completes it. Attach legal or other explanatory documents. Route this form to the Support Services Manager /Public Records Officer to complete Section 3. Employee notifying requester completes Section 4. SECTION 1: FOR CITY USE ONLY Date • Request Number' Department Request received by: This completed form is an open public document and may be released to any requester. SECTION 2: Records Request Name of Requester: Phone: Email Address: Address: City: State'. Zip'. I wish to ❑ inspect ❑ receive a copy of the following specific record(s) Request made: ❑ in person ❑ by phone ❑ by fax ❑ by mail ❑ by email Attach request To assist with record identification, list names of other persons named in the records you seek if known. Your request will be forwarded to the Public Records Officer. Unless otherwise notified, agency response will be completed within five (5) working days. SECTION 3: Agency Response ❑ ALLOW ACCESS Charge is $.15 for each photocopy. Charge for other types of copies is City's actual cost. ❑ DENY ACCESS The records you have requested are legally exempt from public disclosure by the following authority: ❑ WE DO NOT HAVE THE RECORD(S) SECTION 4: Requester Notification Name of person notified: Date: Time: ❑ by mail ❑ by phone ❑ in person ❑ by email ss 072 f made the City's final response as stated. Signature: Routing Original to requester Copy to Public Records Officer 01 o Kenneth L. CITY OF PORTLAND OFFICE OF MANAGEMENT AND FINANCE Tom Potter, Mayor Rust Chief Administrative Officer 1120 5W Fifth Ave., Suite 1250 Portland, Oregon 97204 1912 (503) 823 -5288 FAX (503) 823-5384 TTY (503) 823 -6868 PUBLIC RECORDS REQUEST FORM This form is used to process public record requests in accordance with Oregon Public Records law (ORS Chapter 192) Description of Public Records: Please describe the materials you are requesting. Include as much detail as possible: type of document, publication or release dates, authors, titles, etc. Fees: The Office of Management and Finance will assess the following fees for reproduction of documents. • The Bureau will provide a waiver of up to one hour of staff time and $10 for photocopying and mailing costs per requester per month. • Additional costs will be charged at a rate of $.15 per side for 8x11.5 size, or for actual costs incurred by sending to the City's Printing and Distribution center. ® Additional staff time shall be charged at a rate up to the actual cost per hour. The requester must be made aware of the rate to be charged and given an estimate of time needed. The requester must approve the estimate prior to work beginning. Y A 50% deposit will be required for any request estimated in excess of $100, e Prior to receipt of materials, payment in full must be made. • Questions egarding potential exemption's or procedural issues should be referred to the Communications Manager. Requestor's Name Date: Organization Address City State Zip Code Phone Fax Other Instructions: I wish to schedule a time at the bureau to review the documents I've described above. I understand the fees detailed above, and have received an estimate of the costs. Please proceed. If as the work progresses, it appears likely to exceed the estimate, I wish to be contacted before research continues. Signature of requester Please make checks payable to Office of Management and Finance An Equal Opportunity Employer To help ensure equal access to programs, services and activities, the Office of Management & Finance will reasonably modify policies /procedures and provide auxiliary aids /services to persons with disabilities upon request. Administrative Procedures Section 450 W. State St. 10th Floor PO Box 83720 Boise Id 83720 -0036 Phone # (208) 334 -5564 Fax # (208) 334 -6558 PublicRecordsRequest@dhw.idaho.gov REQUEST TO EXAMINE OR COPY PUBLIC RECORDS FORM Date--- Your Name., Business. Name, Affiliation or Representative Your Telephone Number Your FAX, Number' Your E-Mail Your Mailing Address [ D A h O D E P A R T M E T O F HEALTH & WELFARE Please be specific, i.e...._. p : dates, location(s), names of report(s) etc. Description of Public Record Requested: { Submit ( Reset ) Please note: If the request consists of 100 pages or more, there will be a copy charge of 10 cents per page. APS Home UTIL LIEF ANO Te0.N SPORT OMMISSION e •Consumer, Public Safety. Regulated Ind Advanced Search Heenmi Contact> Public Records Request> Request for Public Records form Please complete this form if you'd like to submit a request for public records. (` denotes required fields) Section 1: Requestor information: Requestor Firm /Organization: Phone (include area codep* Address line 1:* Address line 2: City:* E- mail:' Repeat E- mail :* Representing: emu number: State /Prov: °Zip /Postal Code : " *__. Con ban Most requests are processed within 2 business days. However, processing time may vary depending on the size of the request and availability of records. If your request is urgent, indicate date desired: Section 2: Documents requested. Describe the documents being requested. Please be as specific as possible in defining the information you are requesting.* Please select the preferred method /medium of response to your request: Electronic mail ` Please read and accept the statement below, then submit your request:* Check to accept: By submitting this request, I understand that information provided in response to my request may not be used for commercial purposes. I am also aware that the information I submit using this form is a public record and subject to public inspection. Submit Request Questions? Contact the WUTC Records Center: 360 -664 -1234 TO: FROM: DATE: SUBJECT: MEMO #2 Mayor, Council, & Administration Bob Molloy 04 -29 -09 NEW FEES ORDINANCE NO. 2396 -2009 Information Item #2 New fees can be a new barrier to public access to public records. In my opinion, new fees that the City should not impose include the following: 1. Fee For Determination Of Whether Records Should Be Disclosed Or Withheld. Proposed Regulation 1.03 Production Fee requires the City to charge a production fee that includes time spent determining "whether the document will be disclosed or whether it must be withheld based on privilege, exemption, or other exception." The City should not charge the public requester, including news media, for City personnel's time spent determining whether a public record should be disclosed or its disclosure should be denied. Adding charges for the City personnel's time spent in this part of record review and the production decision creates a new barrier by inflating the production fee. In addition, including such additional charges in the fee is likely illegal under the Alaska Public Records Act, and will subject the City to law suits seeking a court order that this pan of the production fee is illegal. 2. $100 Filing Fee For Appeal To City Council. Proposed Regulation 5.04 Appeal to City Council allows a records requester to appeal a decision of the City Clerk to the City Council and provides that such appeal is under KMC 14.20.290 Appeals -Board of Adjustment. This is the Code section for appeals to the City Council sitting as a Board of Adjustment, and the Code requires the appellant to pay a "filing and records preparation fee of one hundred dollars ($100.00)," unless the appellant is eligible for a reduced fee or a waiver based on indigency.' A member of the public, including news media, should not have to pay a $100 filing fee in order to appeal to Council about decisions that public records won't be released. KMC 14.20.290(6)(6). TO: FROM: DATE: SUBJECT: MEMO #3 Mayor, Council, & Administration Bob Molloy 04 -29 -09 DELIBERATIVE PROCESS RECORDS ORDINANCE NO. 2396-2009 Information Item #3 It is my understanding that the "deliberative process privilege" in Alaska is one of the judicially recognized or "judge- made" exceptions to the Alaska Public Records Act, that is, the Supreme Court of Alaska adopted this privilege for Alaska based on "common taw." What proposed Regulation 2.09 Deliberative Process Records does is to put into Code the City's own version of a "deliberative process privilege." This privilege has potential for abuse. If the City is going to codify its own deliberative process privilege, then the City should add more definition, detail and clarity to the first draft of proposed Regulation 2.09. The first draft is also too vague. For example, the proposed regulation Tacks an adequate definition or description of what "deliberative process information" is. The first draft also does not define "government officials." I am concerned about application of this privilege to Council. A broad deliberative process privilege that shields from public access the pre - decisional written communications between Administration and City Council members or between Council members will be a new barrier to public access to public records and likely will subject the City to law suits claiming that such action is illegal under the City's Charter and Code and under the Alaska Open Meetings Act. In my view, the pre - decisional written communications of elected officials should not be subject to the deliberative process privilege, except for executive session matters and matters for which Council sits as a quasi-judicial body, such as Board of Adjustment. 2.09 Deliberative Process Records. There is a recognized need to encourage open, frank discussions among government officials about proposed or contemplated governmental action. Disclosure of official deliberations will inhibit those discussions, invade the mental processes of government officials, and adversely affect the quality of `administrative decision making. Records containing deliberative process information are confidential and need not be disclosed. Accordingly, requests for internal, pre - decisional records that are deliberative in nature, will be denied unless the City Clerk, after consultation with the City Attorney, determines the requestor has established, on balance, the interest of the public in having access to the record outweighs the interest of the public in having city business carried on efficiently and without unreasonable interference. TO: FROM: DATE: SUBJECT: MEMO #4 Mayor, Council, & Administration Bob Molloy 07 -08 -09 LITIGATION EXCEPTION ORDINANCE NO. 2396 -2009, Amending The KMC With The Addition Of Chapter 10.40, Entitled "Release Of Public Records" And "Regulations Concerning Public Records Inspections" Information Item #4 Our proposed ordinance includes a section 10.40.055 Litigation Disclosure and a regulation 2.04 Litigation Disclosure Requests. The proposed form for the requester's use includes a certification that the requester is not involved in litigation with the City. It is my understanding that these proposals are based on Alaska Statute 40.25.132 Litigation disclosure. (See attached page marked A). Other municipalities, such as Kenai Peninsula Borough, have a code section similar to this statute and to the section proposed for the City of Kenai, section 10.40.055 Litigation Disclosure. However, in a recent decision of June 26, 2009, Copeland and Ott v. Ballard, Dept. of Env. Conservation, the Supreme Court of Alaska again suggested that an equal protection challenge under the Alaska Constitution to this "litigation exception" created by Alaska Statute 40.25.132 might prevail in the Supreme Court of Alaska. (See attached page marked B). In light of this message from the Supreme Court, we should consider, and during the work session, have a discussion about what it would mean, and what the effect would be, if the City does not adopt the "litigation exception" and all requesters of public records are treated the same (that is, if we delete the "litigation exception" from the City of Kenai's ordinance and regulations). -1- ano WetLa® AS § 40.25.122 West's Alaska Statutes Annotated Currentness Title 40. Public Records and Recorders Chapter 25. Public Record Disclosures (Refs & Annos) CNA cle I. Inspection and Copying of Public Records 14 § 40.25.I22. Litigation disclosure Page 1 A public record that is subject to disclosure and copying under AS 40.25.110- 40.25.120 remains a public record subject to disclosure and copying even if the record is used for, included in, or relevant to litigation, including law enforcement proceedings, involving a public agency, except that with respect to a person involved in litigation, the records sought shall be disclosed in accordance with the rules of procedure applicable in a court or an administrative adjudication. In this section, "involved in litigation" means a party to litigation or representing a party to litigation, including obtaining public records for the party. CREDIT(S) SLA 1990, eh. 200, § 6 SLA 1996 eh. 108, § 3. HISTORICAL AND STATUTORY NOTES This section was originally enacted as AS 09.25.122 and renumbered and amended to substitute "AS 40.25.1.10- 40.25.120" for "AS 09.25.110-09.25.120" by the Revisor of Statutes in 2000. LIBRARY REFERENCES Records 54, 62. hl 9000 Thnmenn Rwrtpre /WPet Nn Claim to (Win rIR f cn, \Xlnrlrc denied them access in violation of their due process rights." When assessing whether an administrative action violates the due process clause of the Alaska Constitution, we use the framework established by the United States Supreme Court in Mathews v. Eldridge." We weigh: (1) the private interest at stake; (2) "the risk of an erroneous deprivation" of the private interest and the value of additional safeguards; and (3) the government interest — noting particularly the cost and "administrative burdens" entailed by additional procedural protections}" In this case we have no trouble concluding that the agency's denial of access to the record violated due process. The regulation's effect is to prevent access to the record prior to certification. As litigants, Copeland and Ott have a strong interest in accessing the record it is the platform upon which they must build their case. Access to the record is also important when the parties attempt to negotiate a limited record for review in order to control costs, as they did here. DEC has offered no valid governmental interest in denying access, asserting only that: (1) the parties all had access to the record when they participated in the plan review process; (2) most of the record is irrelevant; and (3) the documents were publicly available during plan review — a statement that Copeland and 32 We have previously noted that the litigation exception of the Act somewhat inexplicably "limits access to otherwise public records." Brady v. State, 965 P.2d 1, 18 (Alaska 1998). We have also noted that an equal protection challenge to this statute might prevail. Id. at 19 -20 (noting that equal protection challenge to AS 09.25.122, now re- numbered as AS 40.25.122, is plausible, but holding the plaintiff in that case had waived the argument). Because Copeland and Ott do not raise these arguments, we do not consider them here. 33 City ofHomer v. State, Dep 't ofNatural Res., 566 P.Zd 1314, 1319 (Alaska 1977) (quoting Mathews v. Eldridge, 424 U.S. 319, 334 -35 (1976)). 34 Id. No d 1:61111` C J z(A`' -11- 63 -- /j/ p8 GiAitr Ai/& � 57 �c`? /U d.. b 2 . ��67.2c/L Pv.