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HomeMy WebLinkAboutOrdinance No. 2564-2011the dyof KENAI, ALASKA Fal (c! d - I ` -- 19 Sponsored by: Council Member Mike Boyle CITY OF KENAI ORDINANCE NO. 2564 -2011 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING KENAI MUNICIPAL CODE SECTION 10.30, "RECORD RETENTION," TO ADD A NEW SECTION 10.30.060 "DISCLOSURE OF INFORMATION COLLECTION" TO REQUIRE THE CITY TO NOTIFY RESIDENTS AND PROPERTY OWNERS THAT THE CITY HAS COLLECTED INFORMATION ABOUT THE RESIDENT OR PROPERTY OWNER AND /OR THEIR PROPERTY IN THE CITY. WHEREAS, through its daily operations, the City develops and creates information on residents of the City and on real property and real property owners of property located within the City; and, WHEREAS, persons who are the subject of an investigation maintained by the City, or persons owning property subject to an investigation or development of information by the City, are often unaware that the City of Kenai is developing and creating this information and retaining it in City files that are otherwise open and available for public inspection; and, WHEREAS, it is antithetical to the concept of American democracy that there are personal data record - keeping systems maintained by the City whose very existence is secret to the person(s) who are the subject of the records; and, WHEREAS, with some exceptions, such as for law enforcement purposes, the residents and property owners of the City of Kenai have a right to know if their government is developing and maintaining records on the person and /or their real property. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, as follows: Section 1. Form: This is a Code ordinance. Section 2. Amendment of Chapter 10.30 of the Kenai Municipal Code: The Kenai Municipal Code, Chapter 10.30, Record Retention, is hereby amended by adding a new section to be numbered 10.30.060 and to read as follows: 10.30.060 Disclosure of information collection (a) The City shall notify any resident or owner of real property located in the City of Kenai if the City develops or creates a public record concerning the resident or New Text Underlined. [DELETED TEXT BRACKETED] Ordinance No. 2564 -2011 Page 2 of 2 concerning the owner or the real property within the City. The City shall provide this information to the resident or owner in writing within 30 days of the City's collection of the information. (b) The notice must include the following information: the nature of the information and the method of its collection; the use(s) to which the information will be put; identification of any potential recipients of the information other than the citizen; that the person has a right to request production of the information from the City and /or that the person may view the data in the City's files. (c) This notice requirement does not apply to the City's development or creation of records exempted from public disclosure under KMC 10.40.040 or to financial records created in the regular course of the City's business and reflected in documents (including billing statements, receipts, and invoices) provided directly to the person. (d.) For purposes of this section "public record(s)" has the same meaning as KMC 1.0.40.020. Section 3. Severability: If any part or provision of this ordinance or application thereof to any person or circumstances is adjudged invalid by any court of competent jurisdiction, such judgment shall be confined in its operation to the part, provision, or application directly involved in all controversy in which this judgment shall have been rendered, and shall not affect or impair the validity of the remainder of this title or application thereof to other persons or circumstances. The City Council hereby declares that it would have enacted the remainder of this ordinance even without such part, provision, or application. Section 4. Effective Date: Pursuant to KMC 1.15.070(1), this ordinance shall take effect one month after adoption. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 17th day of August, 2011. ATTEST: Corene Hall, Deputy City Clerk PAT PORTER, MAYOR Introduced: June 1, 2011 Second Reading: June 15, 2011 Third Reading: August 17, 2011 Adopted: August 17, 2011 Effective: September 17, 2011 New Text Underlined [DELETED TEXT BRACKETED] Village with a Past, Gc with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 MEMO: TO: City Council FROM: Rick Koch DATE: June 9, 2011 SUBJECT: Ordinance No. 2564 -2011, Disclosure of Information Collection The purpose of this correspondence is to provide Administration's recommendation regarding the above - referenced ordinance. The Administration strongly recommends against passage of this ordinance. The sponsor of this ordinance has not provided any supporting information regarding the ordinance other than what is contained in the ordinance itself. Therefore, the language in the ordinance is the only information considered. The ordinance states "the collection of this information is sometimes covert" and "it is antithetical to the concept of American democracy that there are personal data record - keeping systems maintained by the City whose very existence is secret to the person(s) who are the subject of the records." These statements are false and shows the City and Administration in a poor light. In the course of conducting the City's business, City staff is called upon many times a day to refer to information contained in GIS, and other files. For example, when I responded to the James Street Special Improvement District petition, I researched the subdivision plats, property ownership, and utility locations for approximately one -block in all- directions from the proposed improvement district. This encompassed approximately 50 properties, and I included information about these properties in my working file for the improvement district. Under this ordinance I would be required to provide notification to each of the property owners. While the proposed ordinance is mute to further research of this nature, what happens if at a later time I access the Borough data base and make a copy of additional information, must I re- notify the property owners? The estimated effect of this ordinance would be to expend thousands, to tens of thousands, of additional labor hours each year and require an increase of three to six employees. If you have any questions, please contact me at your convenience. KENAI ALASKA txv Village with a Past, Gity with a Future" MEMO: 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 TO: City Council FROM: Rick Koch DATE: August 9, 2011 SUBJECT: Ordinance No. 2564 -2011 The purpose of this correspondence is to provide additional support for Administration's previous recommendation against passage of this ordinance. I was not at the June 15, 2011 Council meeting when this ordinance was discussed and postponed. Additionally, I was not contacted by the maker of the proposed ordinance either prior to or subsequent to that meeting to discuss the proposed ordinance. I have read the minutes from the June 15th Council meeting. The underlying premise of the ordinance is unsupported by the record - keeping practices of the City Administration. I appreciate the Council amending the proposed ordinance to remove language that claimed Administration sometimes collected information on residents, property owners and /or property, in a covert manner, however, there are additional serious unsupported and inaccurate statements and insinuations contained in the proposed ordinance. The proposed ordinance states "WHEREAS, it is antithetical to the concept of American democracy that there are personal data record - keeping systems maintained by the City whose very existence is secret to the person(s) who are the subject of the records," The City does not maintain personal data record - keeping systems on residents of the City, and to state such is reckless and alarmist. Further, of the many files maintained by the City, none are "secret," the majority are available for public inspection and only a few may be withheld from public inspection for legal reasons. There is a significant difference between someone not being aware of a file, and the file being "secret." The proposed ordinance also states "WHEREAS, with some exceptions, such as for law enforcement purposes, the residents and property owners of the City of Kenai have a right to know if their government is developing and maintaining records on the person and /or their real property." The City does not develop and maintain records on persons within the City (other than for law enforcement purposes). The City maintains many records regarding real property, as does the Borough and the State of Alaska. The minutes relative to the postponement of the proposed ordinance reflect the following, "Council Member Molloy MOVED to postpone Ordinance 2564 -2011 to the second meeting in August with direction for the Code Enforcement Officer, Planner, and City Manager to review the code enforcement aspect of the ordinance relative to real property. Council Member Marquis SECONDED the motion." Based on the above, the remainder of the discussion contained in this correspondence will be limited to the code enforcement aspect of the ordinance relative to real property and not to the specific language contained in the ordinance. There are a number of departments within the City that have responsibilities relating to code enforcement relative to real property. These include the Fire Department, Police Department, Public Works Department, Planning Department, and the City Manager's office. Attached are memoranda and e-mails from Administrative Staff addressing the proposed ordinance. 1. Memo from Kebschull (Planning) to Koch dated August 1, 2011 2. Memo from Carver to Kebschull (Planning) dated June 27, 2011 3. Memo from Sandahl (Police) to Koch dated August 10, 2011 4. Memo from Joiner (Library) to Koch dated August 11, 2011 5, E -mail from Tilly (Fire) to Koch dated August 10, 2011 In addition to the concerns expressed in the above - referenced documents, the Public Works Department through the Building Official is involved in a significant number of code enforcement issues. Generally, the code enforcement actions of the City are complaint driven. On occasion, City personnel may observe a gross violation of building /property codes resulting in the initiation of an enforcement action but it is the exception. The majority of public complaints are handled by Staff without the need for formal enforcement action. This may be because the specific complaint is not a code violation, such as a complaint because a neighbor does not maintain the grass /weeds in their yard. Often, when a complaint is received and verified to be a code violation, a phone call to the property owner results in compliance, and again no formal enforcement action is initiated. In each of these examples some record is maintained of the contact /complaint, and its resolution. In the event, a formal enforcement action regarding real property is undertaken by the Code Enforcement Officer, the Fire Marshall, or the Building Official, a written notification is provided to the property owner. The system and policies presently utilized by the various City Departments, and the written notifications which are presently provided in the case of formal enforcement action, are appropriate and sufficient. The proposed amendment to KMC 10.30 is unclear as to its intent and application, and will create a significant additional workload and confusion to its application. Administration has not been contacted by any individuals expressing dissatisfaction with the City's present policies and process. Administration recommends against passage of this proposed ordinance. Thank you for your attention in this matter. KENAI, ALASKA EM "Village with a Past, Gc with a Future" 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 ,,t Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 tllllr 1997 o: TO: Rick Koch, City Manager 1 FROM: Marilyn Kebschull, Planning Administrator( DATE: August 1,2011 SUBJECT: Ordinance No. 2564 -2011 — Amending KMC 10.30, "Record Retention" Council postponed action on Ordinance No. 2564 -2011 until August 17th to provide an opportunity for administration to review the ordinance. As you outlined in your June 9th memo to Council, in the course of daily duties the Planning Department uses the property data contained in the GIS system innumerable times. The information contained in the GIS system is public and used not only by City staff but the public. Property ownership data and assessing information is provided to anyone researching property in the City. This Ordinance, if passed, would require duplication of any information gleaned from the 4,821 parcels located in the City. Or, for example, when the Council recently directed administration to notify every property owner in the City of the work sessions and public hearing planned to review the proposed amendment to the Land Use Table for the RR -1 zone (Ordinance No. 2011 - 2546), would a second notice have been required to let the public know the City had researched their property records? Copies of that mailing are contained in the Planning file for the Ordinance. So, it would appear that the proposed amendment to KMC 10.30.060 would have required a second notification to each owner that information regarding their property is contained in the file. This example is somewhat extreme; however, every application processed by the Planning Department that requires a public hearing contains property data on every property owner within 300 feet of the applicant's property. The notification data becomes a permanent part of the file and it would appear this proposed amendment would require notification to each of these notified property owners. Attached is a memo from Nancy Carver which outlines the procedure used for code enforcement. Ms. Carver recommends an alternative to the proposed amendment and I support her recommendation. The objective of the ordinance could be established by adding a footnote to all correspondence related to code enforcement. The footnote could contain information to the public on how to obtain any records the City has relating to their property. For example, Memo to Rick Koch, City Manager RE: Ordinance No. 2564 -2011 — Amending KMC 10,30, "Record Retention" August 1, 2011 Page 2 "You have a right to review records regarding your property by contacting the City's Planning Department located in City Hall at 210 Fidalgo Avenue or by calling 283 -8237. Formal requests for copies of City records should be directed to the City Clerk by calling 283 -8231 or completing and submitting the Public Records Request Form on the City's web site at www.ci,kenai.ak,us," I agree with your June 9`h memo and strongly recommend against the passage of the Ordinance, even as amended. I hope Council will consider the proposed solution outlined above that can be accomplished administratively without the code amendment. KENAI, ALASKA 'Village with a Past, Gc with a Future 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 t Telephone: 907- 283 -7535 / FAX: 907- 283 -3014 t IIII 1992 MEMO: TO: Marilyn Kebschull, Planning Administration FROM: Nancy Carver, Planning Assistant DATE: June 27, 2011 SUBJECT: Council Direction — Ordinance No. 2564 -2011 At the June 15th Council meeting, Council postponed action on Ordinance No. 2564- 2011 until the second meeting in August to send it back to Code Enforcement Officer, Planning and City Manager to review ordinance. Code enforcement is complaint- driven. When a complaint is received, a site visit is conducted to determine if a violation of the City's code exists. If a legitimate code violation exists, photographs are taken. The City's GIS system is used to determine the property owner. Using property ownership information, an attempt is made to contact the owner by phone. If phone contact is unsuccessful, a letter is drafted and sent with copies of the photographs and the code section. The letter provides a reasonable time for the owner to eliminate the violation. At this time, a file is opened. It appears that the Council's intent could be satisfied without amending the code and by establishing a policy that requires notification of an individual's rights to obtain or review copies of City records. This could be accomplished by adding a footnote to the letter to advise the property owner of their right to obtain copies of the file and the process for obtaining that information. For example, "You have a right to ask to review your file by contacting the City's Planning Department. Formal requests for copies of City records should be directed to the City Clerk by calling 283 -8231 or completing and submitting the form from the City's web site at www.ci.kenai.ak.us." the a of KENAI, ALASKA "kZllaye with a Past, C# with a Picture" Kenai Police Department tII 107 S. Willow St., Kenai, Alaska 99611 Telephone: 907 - 283 -7879 / FAX: 907 - 283 -2267 MEMO: TO: Rick Koch - City Manager FROM: Gus Sandahl - Police Chief /0- DATE: 8/10/11 SUBJECT: Disclosure of Information Collection With regards to proposed ordinance 2564 -2011, I have concerns that Police personnel will become overwhelmed with notifications. Although the KMC 10.40.040 provides for law enforcement exemptions, there are a number of cases that would not fall into the exemption. Scenario #1 - A concerned resident of Old Town calls the Police to report that Bill and Jane Smith are on the protected bluff area in Old Town, and they would like an officer to advise them to stay off the bluff. Within two minutes, the complainant calls back and says, "Nevermind, I handled it myself, and told them to stay off the bluff. They left on my request." In this situation an officer would likely not respond, and the incident would be closed. However, there would be a police record of this, to include Bill and Jane Smith's names. Due to the broad scope of section (a) in the proposed ordinance, the Police would have to notify Bill and Jane Smith of the record and provide everything required in section (b). Scenario #2 - A resident is upset with off -road vehicles in his neighborhood. He calls the Police Department 25 times a year to complain about people riding snowmachines in Kenai. The man wants off -road vehicles entirely banned from the City. Police contact adults who are all riding snowmachines lawfully on an unimproved right of way. The Police Department keeps a record on all 25 incidents, including alleged violator names. The man calls KPD supervisors multiple times a week complaining about issues with the City's off -road vehicle ordinance. Those supervisors write notes so they make sure they understand the man's concerns. Under the proposed ordinance the Police would have to notify the complainant that there is a record of him reporting all 25 incidents, and would further have to notify all adult snowmachine riders contacted /reported that there is a record of the incident. Further, the supervisors would have to notify the complainant that they wrote notes during the phone calls so they could accurately document the man's concerns. 1992 Scenario #3 — Every October, Kenai officers conduct a sweep of Woodland, Redoubt Subdivision, and other crowded neighborhoods. For any vehicles parked on City streets between 4am and 8am, we place a warning tag on the vehicle. We might place up to 40 tags on the first night of the sweep. The license plate is documented in a Police record, which aids officers in deciding to tow /cite for future violations. Within a week, most cars are off the street at night. By the time of the first snow fall City graders are able to plow the streets, unimpeded by parked vehicles. I could come up with multiple other examples. Our officers handle approximately 7,500 calls for service a year, and we make contact with countless individuals. This year we had 1,101 calls for service in July alone. Officers write about 200 reports a month. Not all of those reports result in criminal charges. I would ask that if Council gives consideration to passing this ordinance that they provide for an exemption of all law enforcement records, and not just the records exempted in KMC 10.40.040. Otherwise, the Police Department will be sending out multiple disclosure notifications a day. Currently, we have procedures in place for residents to request a copy of a Police incident or report. KENAI, ALASKA Tillage with a Past, Gc with a Future" MEMO: 210 Fidalgo Avenue, Kenai, Alaska 99611 -7794 Telephone: 907 - 283 -7535 / FAX: 907 - 283 -3014 '1111' 1992 TO: Rick Koch FROM: Mary Jo Joiner DATE: 11 August2011 SUBJECT: Ordinance 2564 -2011 As I look at Ordinance 2564 -2011, I am not sure how it applies to the library. Alaskan statute AS 40.25.140 reads: Confidentiality of Library Records. (a) Except as provided in (b) of this section, the names, addresses, or other personal identifying information of people who have used materials made available to the public by a library shall be kept confidential, except upon court order, and are not subject to inspection under AS 40.25.110 or 40.25.120. This section applies to libraries operated by the state, a municipality, or a public school, including the University of Alaska. (b) Records of a public elementary or secondary school library identifying a minor child shall be made available on request to a parent or guardian of that child. The ordinance does refer to "City files that are otherwise open and available for public inspection." Our records clearly are not. Section 10.30.060 of this ordinance stipulates that the City shall notify any resident.... "if the City develops or creates a public record concerning the resident..." When library card holders have retained material past the due date and not returned items despite attempts to notify them, we do create a record and eventually, create a file that goes to the city attorney for a final letter asking for payment or return of the items. It is not clear to me if this information has now become part of the public record open and available for public inspection, particularly in the period before the letter from the city attorney is issued while we are assembling the information and how this relates to AS 40.25.140. All of our files on individuals are records and files that result from an action by the user that is in violation of the policies of the Library and generally involve theft of library materials. If we must notify them specifically about files that we keep in addition to the notices we send, this will double the work load here and may confuse and alarm the library users. Rick Koch From: Michael Tilly Sent: Wednesday, August 10, 2011 2:23 PM To: Rick Koch Subject: Ordinance #2564 -10 Rick, Obviously this does not apply to Medical records because there is no way around the HIPPA laws but we have hundreds of files specific to buildings and building inspections. Many of these files are 10, 20 or even 30 years old. We start a file on every new business or building that we plan to inspect for years to come. That is really the only records kept that apply to personal property. Michael R. Tilly Fire Chief Kenai Fire Department