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HomeMy WebLinkAbout13745RESOLUTION NO. 13745 A RESOLUTION ADOPTING RULES GOVERNING ACCESS TO PUBLIC RECORDS AND RESCINDING RESOLUTION NO.13462 WHEREAS, pursuant to the Colorado Open Records Act, § 24-72-201 (“CORA”), writings which are made, maintained or kept by the City, regardless of the format or medium, are open for inspection by the public at reasonable times, unless specifically exempted from inspection by CORA or other Colorado law; and WHEREAS, CORA authorizes political subdivisions of the state to adopt rules and regulations in order to protect the records and prevent unnecessary interference with government operations; and WHEREAS, the attached rules and regulations shall facilitate the City of Pueblo’s compliance with CORA, NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The rules governing access to public records, 2 CPR 901, et seq., a copy of which is attached hereto, having been approved as to form by the City Attorney, are hereby approved. SECTION 2. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Resolution and the attached rules, to implement the policies and procedures described herein. SECTION 3. Resolution No. 13462, adopted by the City Council on June 27, 2016 is hereby rescinded. SECTION 4. Resolution No. 12975, adopted by the City Council on June 9, 2014, is hereby rescinded to the extent that it is inconsistent with this Resolution. SECTION 5. This Resolution shall become effective immediately upon final passage. INTRODUCED August 14, 2017 BY: Robert Schilling City Clerk’s Office Item # M-6 Background Paper for Proposed Resolution COUNCIL MEETING DATE: August 14, 2017 TO: President Stephen G. Nawrocki and Members of City Council CC: Sam Azad, City Manager VIA: Gina Dutcher, City Clerk FROM: Daniel C. Kogovsek, City Attorney SUBJECT: A RESOLUTION ADOPTING RULES GOVERNING ACCESS TO PUBLIC RECORDS AND RESCINDING RESOLUTION NO.13462 SUMMARY: This Resolution adopts an official set of rules that govern access to public records. The proposed rules are authorized by and consistent with the Colorado Open Records Act, § 24-72-201, et seq., (“CORA”). PREVIOUS COUNCIL ACTION: On June 9, 2014, by Resolution No. 12975, City Council established fees for copying public records pursuant to CORA and the Colorado Criminal Justice Records Act. On June 27, 2016, by Resolution No. 13462, City Council established rules for access to Public Records prior to State Legislature in 2017. BACKGROUND: The attached rules establish policies and procedures for the City to comply with CORA. The City Clerk is designated as the “official custodian” of all City records for purposes of compliance with CORA. This promulgation of rules by the City is timely due to two bills passed by the State Legislature in the 2017 session regarding CORA which will take effect on August 8, 2017. Senate Bill 17-040 requires that digital records be produced in searchable and sortable format whenever possible. House Bill 17-1177 institutes an alternative dispute resolution process when the production of records is denied by the official custodian. FINANCIAL IMPLICATIONS: None. BOARD/COMMISSION RECOMMENDATION: Not applicable. STAKEHOLDER PROCESS: Not applicable. ALTERNATIVES: Do not adopt a specific set of rules governing the access to the City’s public records. RECOMMENDATION: Approve the Resolution. Attachments: Proposed Resolution, Proposed Regulations ARTICLE 2 Section 900 — Public Records In General Rule 901. Title. This section shall be known and may be cited as the"Administrative Rules Governing City of Pueblo Compliance with the Colorado Open Records Act,"and for convenience maybe referred to as "CORA Rules." Rule 902.Authority. The Colorado Open Records Act, C.R.S. §§24-72-201 et seq. (as may be amended from time to time) ("the Act"), requires that all public records be open for inspection by any person at reasonable times, except as provided by law. The Act allows the official custodian of public records to adopt rules concerning the inspection of such records to protect the integrity of the records and to prevent unnecessary interference with the regular operational duties of the City's employees that may be caused by requests under the Act. Rule 903. Purposes and application. 903.1. These CORA Rules are intended to establish general procedures with regard to providing the public with timely, orderly, and appropriate access to and inspection of public records maintained by the City, and to set reasonable and standardized fees for research, retrieval, review, and copying pursuant to the Act. 903.2. These CORA Rules do not apply to records requested under the Colorado Criminal Justice Records Act ("CCJRA"), C.R.S. §§24-72-301 et seq. (as may be amended from time to time). Requests for records under CCJRA should be directed to the Pueblo Police Department. 903.3. The City Clerk is the official custodian of records for public records maintained by the City, excluding Municipal Court records. The City Clerk will ensure consistent application of the procedures in these CORA Rules, but may delegate certain responsibilities to department heads in order to facilitate responses to requests made under the Act. 903.4. It is the desire and goal of the City to conduct business in a transparent manner within prudent and legal parameters. To that end, the public is encouraged to visit www.pueblo.us to see if the records they wish to request are already available for inspection online. 2 CPR 901 et seq. Amended 08-14-17 Page 1 Rule 904 to Rule 910. Reserved. Rule 911. Definitions in the Act. 911.1. Definitions in the Act are incorporated in these CORA Rules, unless the context clearly requires a different interpretation. In the event of a conflict between a definition set forth herein and in the Act, the definition in the Act shall prevail. 911.2. Other expressly defined terms in these CORA Rules shall have the following meanings: "Applicant" means the party requesting records. "Official Custodian" means the City Clerk or designee. "Research/Retrieval/Review/Production Time" means the time expended by City staff and/or third party contractors to gather and review records made the subject of any request. Rule 912 to Rule 920. Reserved. Procedures Rule 921. Specificity of requests. All requests for public records shall be in writing and must be specific as to the records sought, including subject matter, types of records, dates covered, etc. Requests for communications must identify, to the extent reasonably practicable, names or titles of parties to the communications. For any request the Official Custodian deems to be vague or overly broad, he/she may require a more specific written request before incurring any time or expense in preparing a formal response or making the public records available for inspection to the Applicant. An Applicant shall use the request form prescribed by the Official Custodian or shall otherwise provide the information requested by the request form. Rule 922. Excessive, burdensome, or harassing requests. In order to prevent unnecessary interference with the regular operational duties of City employees, the City places a limit of three (3) separate items per request. The City reserves the right to process multiple requests in groups of three (3). The City reserves the right not to respond to that portion of any communication that contains demeaning,harassing, or threatening language, or consists of interrogatories, editorials, or other such comments. Rule 923. Submission of written requests. Requests for public records may be submitted by mail, facsimile, email, or hand- delivery. Requests should be made directly to the City Clerk's Office, but may be made to individual City Departments. For an Applicant's convenience, the Official Custodian has a 2 CPR 901 et seq. Amended 08-14-17 Page 2 records request form that an Applicant may complete in order to facilitate and expedite a records request. The form can be found at www.pueblo.us. Rule 924. Format of data. Records will be provided in a format or medium determined by the Official Custodian. Records will not be provided in a specific format or medium requested by the Applicant unless that format or medium is the form in which the record is normally kept. Rule 925. Manipulation of data. The City is not required to create any new public record in response to a request. Records and data need only be provided in the format in which they currently exist. In the event that the City consents to any manipulation of data, the Applicant will be charged staff time for the work. Rule 926. Duplication of records. The City will not screen requests from the same Applicant in order to avoid duplication of records. It is the Applicant's responsibility to ensure that the requests are not duplicative. In the event duplicate records are provided, no refunds will be provided. Rule 927. "Continuing requests." Requests made for future records that are not yet in existence or requests that a record be made on a continuing or periodic basis will not be fulfilled. Rule 928. Possession, control, and protection of City records. In order to protect City records, no original records may be removed from the files or taken from the site designated by the City for inspection. The City reserves the right to require supervision of the inspection and copying. The Official Custodian may authorize the Applicant to copy public records using the Applicant's own equipment (e.g., cell phone camera), but such authorization must be made prior to any copying. The City reserves the right to withdraw records being inspected, or sought to be inspected by the public, for operational purposes. The City reserves the right to charge and prosecute anyone who intentionally destroys, defaces, removes from the designated inspection site, or alters public records or property. Rule 929. Office hours for inspection of public records. All public records shall be open for inspection between the hours of 8:30 a.m. and 4:30 p.m., Monday through Friday, except City observed holidays or during City facility closures. The Official Custodian may abbreviate the hours on any given day if the Official Custodian deems that the request to inspect unduly interferes with the operational duties of the City's employees or for any emergency. Rule 930. Identification of Applicant. 2 CPR 901 et seq. Amended 08-14-17 Page 3 Responding to requests under the Act is expedited by the Applicant providing appropriate contact information. The identification of the Applicant is also relevant to whether certain information can be disclosed to that Applicant under the Act. Rule 931. Time to respond to Open Records Requests. Pursuant to the terms of the Act, the City shall make the public records requested available within three (3) business days, unless extenuating circumstances exist, in which case, up to an additional seven (7) business days may be added. A finding of extenuating circumstances shall be made in writing by the Official Custodian, and shall be provided to the Applicant. Rule 932. Allowance or denial of inspection. The Official Custodian shall follow the requirements, protections, and exemptions of the Act and Colorado case law when determining whether to allow or deny any request of inspection of records,which include,but are not limited to: inspection would be contrary to state or federal law or regulation; release of the record would violate a court order; or disclosure would be contrary to public interest. The Official Custodian's decision shall be final for purposes of appeal under Colorado law. Rule 933. Copyrighted Materials. If there is a request for any document that the City reasonably believes is copyrighted, either because of a statement contained on the document or by the inclusion of the copyright symbol ©, the document will not be photocopied. Rule 934. Deleted documents. Unless the Applicant can provide a sufficient factual basis to establish bad faith,the City shall have no duty to recreate or reconstruct any mailbox or hard drive in order to respond to a request for documents or emails which have been deleted. Rule 935. Redaction of non-public or exempted matters. The Official Custodian may redact any non-public record or matters that require non- disclosure under any exemption in the Act or case law. Rule 936. Abandoned requests. Failure to inspect the public records at the agreed upon time and place will be deemed an abandoned request. The City may return the records to their proper locations within two (2) business days, or a shorter period if needed by the City for any use. If the records are returned to another location as a result of an abandoned request, a new request must be made to inspect those records. 2 CPR 901 et seq. Amended 08-14-17 Page 4 Rule 937 to Rule 950.Reserved. Fees Rule 951. Fees. 951.1. Research/Retrieval/Review/Production Time. Public records that are responsive to a request, and not covered by an exemption, may be inspected at no cost if the document already exists, and it takes sixty (60) minutes or less of cumulative staff time to produce the public records; however, the City will charge a fee of$30 per hour for the staff time exceeding sixty(60) minutes. Notwithstanding the foregoing, the City reserves the right to require supervision of the inspection and copying of any public records. 951.2. Hard copies. The City's fee for producing hard copies of any record shall be twenty-five cents per standard page. The fee for a non-standard page shall be the actual cost of providing the copy. 951.3. Transmission. The Applicant shall be required to pay all costs associated with the transmission of the records, as well as any costs associated with the production of the records, prior to the City's transmitting any record. No transmission fee will be imposed for records transmitted by electronic mail. Rule 952. Electronically stored data. Due to security reasons, any requests for electronically stored data, such as emails, require initial research, retrieval, and review for exemption by City staff, which may include staff attorney time and/or a third-party contractor. Fees for such time will be charged at the rate of$30 per hour in excess of the first hour. Rule 953. Deposit and pre-pay requirements. The Official Custodian shall require a monetary deposit and/or prepayment before commencing action to retrieve and make available the records. The Applicant shall be required to pre-pay the estimated costs before the City commences action to retrieve and make available the records. If the final amount is greater than the estimate, the Applicant shall pay the additional amount at the time the records are made available. If the final amount is less than the estimate, the amount of overpayment shall be refunded. Rule 954. Forms of payment. Whenever fees are assessed pursuant to these CORA Rules, the City will accept payment in the forms that are accepted at that time by the City's Finance Department. Except as stated herein, payment shall be made at the time the records are made available. Rule 955 to Rule 959. Reserved. 2 CPR 901 et seq. Amended 08-14-17 Page 5 Digital Records Rule 960. Digital format. If a public record is stored by the City in a digital format, the Of f i ci al C ustodian shall provide a copy of a public record, subject to appropriate redactions, in a digital format as follows: 960.1. If the digital format of the public record is searchable, but not sortable, then the custodian shall provide a copy in a searchable format (such as Word or a searchable Portable Document Format a.k.a. "PDF). 960.2. If the digital format of the public record is sortable, then the custodian shall provide a copy in a sortable format (such as Excel or a comma-separated values format a.k.a. "CSVJ"). 960.3. If a record is stored by a custodian in a digital format that is not searchable or sortable (such as scanned or saved document in non-searchable PDF format) the Official Custodian is not required to convert it to a searchable or sortable format, may provide it in the digital format in which it is stored. Rule 961. Exceptions to digital format production. If the record is either searchable or sortable, the Official Custodian does not have provide records in those formats under the following circumstances: 961.1. Copyright/Licensing: Releasing the record would violate terms of any copyright or licensing agreement with a third party or result in the release of a third party's propriety information 961.2. Not Feasible: After making reasonable inquiries, it is not technologically or practically feasible to permanently remove information permitted to be withheld or it is not technologically or practically feasible t o provide a copy of the record in a searchable or sortable format or if the 0 ffi c i a 1 Custodian would be required to purchase software or create additional programming or functionality of its existing software to remove information. Rule 962. Alternative Formats and Written Declaration. If the Official Custodian is not able to comply with a request for a public record in a requested format, the Official Custodian shall produce the record in an alternative format and shall provide, in writing, a declaration as to the reasons for not being able to provide the information in the requested format. Rule 963 to Rule 969. Reserved. 2 CPR 901 et seq. Amended 08-14-17 Page 6 Pre-Litigation Matters Rule 970. Alternative Methods of Resolving Disputes. 970.1. Notice: An Applicant seeking relief from the District Court under the Act, must provide at least fourteen ( 14) days written notice to the Official Custodian prior to filing an application with the District Court. 970.2. Meeting: During the 14-day period, the Official Custodian who has denied access must meet with or speak by telephone with the Applicant to determine if the dispute may be resolved without applying to the District Court. 970.3. Alternative Dispute Resolution: The meeting may include recourse to any method of alternative dispute resolution ("ADR") agreeable to both parties, with the parties sharing expenses of ADR equally. 970.4. No resolution: If the meeting does not lead to a resolution, the Applicant can then seek relief from the District Court. Rule 971. Expedited Need Exception. No meeting to determine whether the dispute can be resolved without applying to the District Court needs to be held if the Applicant requesting access requires expedited access and provides written notice to the 0 f f i c i a 1 Custodian of the expedited need, with a written factual basis for such expedited need, at least three (3) business days prior to applying to the District Court. Rule 972 to Rule 999.Reserved. 2 CPR 901 et seq. Amended 08-14-17 Page 7