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Attorney general rules Hustonville improperly withheld ordinances

September 19, 2012|By Ben Kleppinger | ben@theinteriorjournal.com

HUSTONVILLE — The city of Hustonville improperly denied public access to ordinances that the city council had given first readings to, the Kentucky Attorney General's Office ruled Sept. 14.

Hustonville denied a request from The Interior Journal for five ordinances given first reading in August "based solely on a 'narrowing, legalistic interpretation' of the request" and "erred in denying the request entirely," the AG opinion reads.

The five ordinances were aimed at curtailing jaywalking, parking at night, face-shielding, crowd control and littering.

At its regularly scheduled September meeting, the city council passed second readings of the three ordinances addressing jaywalking, parking at night and face-shielding. It also voted to "strike down" the second readings of the crowd-control and littering ordinances.

The Interior Journal requested the ordinances at the end of the Aug. 7 meeting, after they had received first readings. City Attorney Carol Hill told The Interior Journal the ordinances were still "preliminary documents" and did not have to be released.

The Interior Journal filed an open records request with the city on Aug. 8, asking for the city ordinances "that were given first readings" on Aug. 7.

City Clerk Rita Clem denied the request because "the open records act only governs access to the existing records and not to records that will be created in the future."

The Interior Journal appealed the denial to Attorney General Jack Conway.

During the appeal process, Hill argued that The Interior Journal requested "ordinances" and not "proposed ordinances."

By interpreting the request for "ordinances" to mean only "established" or "permanent" laws, the city was correct to deny the request because the "proposed ordinances" had not been passed into law yet and so did not exist in that form, Hill argued.

But the Attorney General's Office rejected that argument, writing in the opinion that The Interior Journal's request was "adequate for a reasonable person to ascertain its nature and scope."

The records sought by The Interior Journal "unquestionably existed" when they were requested, the AG opinion reads.

"A reasonable person would have deemed the records belatedly characterized as 'Proposed Ordinances' by the City at least potentially responsive to the facts presented," the opinion reads. "The City did not initially offer any explanation of its position that no such records existed. However, expecting a requester to fully understand the statutory process for enacting an ordinance and the legal distinctions between 'Proposed Ordinance' and 'Ordinance' would improperly create impediments to public access by shifting the statutory burden of proof to a requester.

"The City's belated argument regarding the semantics … is unpersuasive."

An employee in Hill's Stanford office said Hill was unavailable for comment on the ruling because she is currently in Texas.

Mayor Marc Spivey did not return a call asking for comment on the ruling.

When asked after the September city council meeting if his position was that the city council could withhold proposed ordinances from the public until they are passed into law, Spivey said, "yes, it is."

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