By CHRIS HARRIS, CJ Staff Writer Commonwealth Journal
The City of Burnside has received an open records order from the state attorney general’s office — but it’s doubtful the documents in question will be making an appearance anytime soon, to hear the mayor tell it.
The notification bearing the name of Kentucky Attorney General Jack Conway and Assistant Attorney General James Herrick states that the City of Burnside violated the Open Records Act — which is designed to give citizens access to public documents and records — by failing to respond to a request by former city councilor Frank DeNiro.
DeNiro — who was on the Burnside City Council the last two years; he ran for re-election to the council in November but was not voted in for a second term — had requested to “view most current Burnside water plant plans-drawings and water lines” on April 4, 2012.
The order states that “(t)he City’s representation that it does not possess records of its water plant may indicate a further violation of the act or a records management problem and warrants investigation by the Department for Libraries and Archives.”
Burnside Mayor Ron Jones says nobody knows where the blueprints are right now — and that it’s been almost two decades since anyone likely did.
“If the library (department) says, ‘You didn’t do a good job of keeping them,’ I’ll say I wasn’t there 19 years ago,” said Jones. “Go talk to whoever it was (in City Hall) at the time.
“They may find that the city didn’t properly handle those records,” said Jones. “Well it wasn’t something I did, and it isn’t something I can do anything about now.”
Work on the current Burnside water treatment facility was done in 1994, noted Jones, long before he was on the council or in the mayor’s office. Jones said he had former water manager R.D. Huff search for the documents, and that search was unsuccessful. Also, Jones said he believes that someone contacted the firm that worked on the project — Lexington’s GRW Engineering — and that didn’t turn up the blueprints either.
Furthermore, Jones isn’t certain it’s appropriate to let DeNiro — or anyone else — see the documents in question.
“I got a letter from one of the attorneys from the Kentucky League of Cities (KLC), and she thought the records should be made available,” said Jones. “I checked with J.D. Chaney (chief governmental affairs officer) at the League of Cities, and he said, ‘Don’t tell me she said that.’ (The documents) should not be made available because they fall under Homeland Security.
“That’s the water source for the whole community,” continued Jones. “Why would anyone want to know anything about that other than employees?
“It’s not me deciding (other people) don’t need it,” he added. “Homeland Security says they don’t have any business with it. That’s why they have a fence around the water plant, and have security cameras around it.”
Jones said that DeNiro would check in with City Hall every few days to see if the city had found the plans he’d requested. Jones repeatedly had to tell him no, and that if the city did consent to let DeNiro see them, “it will be here at City Hall with someone else looking on; we won’t be giving out a blueprint of the water processing plant for you to go spreading around for the entire community.”
The order from Conway said that DeNiro’s appeal to the attorney general’s office was dated November 26, 2012 and received on December 4, after repeated attempts by DeNiro to acquire the information from the city. According to the order, DeNiro said that “the Mayor stated that the attorneys instructed him to not allow me to see the plans. ... I spoke to the City Attorney Billy Hopkins and he said he didn’t know what the Mayor meant and that I should write the Attorney General’s Office.”
Conway’s notice said that “(w)e find that the City of Burnside failed to meet its first obligation under the Open Records Act, which is to give a timely written response to a written request to view public records” and that “(t)he City never gave Mr. DeNiro a written response. Instead, he received an alternating pair of excuses. First he was told that the KLC had advised the mayor not to let him see the plans; then he was told that the mayor had not found the plans. Finally, six months later, he was told that ‘the attorneys instructed’ the mayor not to let him see the plans. It is clear from the e-mails that the KLC attorneys had instructed no such thing.”
The document also states that if Burnside has placed its records in the hands of a third party, that does not put them outside the reach of the Open Records Act, but if the city has simply misplaced the records, that would “not substantively violate the Open Records Act per se, because a public agency cannot afford a requester access to a record that it does not have or that does not exist. ... In general, it is not our duty to investigate in order to locate documents which the public agency state that it does not possess. In this case, however, the documents would have been lost by the public agency, which would create a records management issue.”
The authors of the order said that they are “referring the matter” to the Department of Libraries and Archives to “render any needed services or take other action as it may find appropriate.”
Jones pointed out that the city currently has “engineers designing a whole new plant now” and that “we’ll have a whole new set of blueprints (after the project is completed) and I doubt very seriously if Mr. DeNiro gets a copy of those either.”