Chapter 2.120
PUBLIC RECORDS

Sections:

2.120.010    Open records.

2.120.020    Access and inspection of records.

2.120.030    Copying charges for records.

2.120.040    Certified copies of records.

2.120.050    Compilation or creation of records.

2.120.060    Personal and proprietary records available for public disclosure.

2.120.070    Exemptions for particular records.

2.120.080    Filing of exempt records.

2.120.090    Denial of request – Appeal.

2.120.100    Records management program creation and administration.

2.120.110    Ownership of records.

2.120.120    Responsibility of the borough clerk.

2.120.130    Responsibility of the departments.

2.120.140    Records management planning committee.

2.120.150    Approval and adoption of retention schedules.

2.120.160    Noncurrent records not to be maintained in office files.

2.120.170    Disposal of records.

2.120.180    Micrographic program established.

2.120.190    Micrographic standards.

2.120.200    Alteration and replacement of public records.

2.120.210    Penalty.

2.120.220    Definitions.

2.120.010 Open records.

Unless specifically provided otherwise, the public records of the borough are open to inspection by the public under reasonable rules during regular office hours. The borough official having custody of public records shall give on request and payment of the fee established by resolution of the assembly a copy of the public record. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.005.]

2.120.020 Access and inspection of records.

Public records may be inspected at the borough office where the records are kept during the regular office hours of that particular office. All borough officials shall, consistent with the orderly conduct of borough business, make a good faith and diligent effort to respond to requests for inspection or copies of records made pursuant to the KGB Code. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.010.]

2.120.030 Copying charges for records.

(a)    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 borough and shall be set by borough assembly resolution. The resolution may also contain a separate fee schedule for providing electronically generated public records, to be based on recovery of the actual incremental costs of providing the electronic record.

(b)    If the production of records for one requester or the agent of a requester in a calendar month exceeds five person hours, the borough 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 perform the search and copying tasks. The requester shall pay the fee before the records are disclosed, and the borough may require a deposit in advance of the search.

(c)    Any fee may be reduced or waived if it is determined that the reduction or waiver is in the public interest. Fee reductions and waivers shall be uniformly applied among persons who are similarly situated. The borough may waive a fee of five dollars ($5.00) or less. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.015.]

2.120.040 Certified copies of records.

The borough clerk shall give, on request and payment of costs, a certified copy of any public record required to be disclosed under the KGB Code. A fee may be charged for certified copies set in accordance with KGBC 2.120.030. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.020.]

2.120.050 Compilation or creation of records.

Nothing in the KGB Code shall require the borough to create records, compile, summarize, outline or in other ways create information from existing public records. In those instances where the borough official who is the custodian of the record determines that the borough has the requisite resources to compile or create records to comply with a request for information, the borough may charge the requester with the costs of such compilation or summary, which costs shall be set in accordance with KGBC 2.120.030. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.025.]

2.120.060 Personal and proprietary records available for public disclosure.

(a)    If the borough official who is custodian of a record that is subject to public disclosure considers all or a portion of the information requested to be of a sensitive personal or proprietary nature, the official may attempt to notify the person who is the subject of the record or person who may be concerned with its pending release. Failure to notify shall not be grounds for action against the borough or its employees.

(b)    If an objection to release of the record is filed, the borough shall delay the release of the record for at least five (5) working days in order to provide time for the objecting party to seek appropriate restrictions or release of any portions of the record.

(c)    The requirements of this section shall not apply to financial information provided as part of an application for economic development assistance under Chapter 4.25 KGBC. [Ord. No. 1126A, §1, 3-06-00; Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.030.]

2.120.070 Exemptions for particular records.

(a)    This chapter shall not be construed to require disclosure of the following records or information which, by law, is required to be confidential:

(1)    Records of vital statistics and adoption proceedings;

(2)    Records pertaining to juveniles;

(3)    Health, mental health, medical, juvenile and personality problem information obtained or prepared by the borough with respect to any person for whom treatment or services were provided;

(4)    Records required to be kept confidential by a borough ordinance, a federal law or regulation or by state law; and

(5)    Records required to be kept confidential under 20 U.S.C. 1232(g) and the regulations adopted thereunder in order to secure or retain federal assistance.

(b)    This chapter shall not be construed to require disclosure of the following business and proprietary records or information:

(1)    Trade secrets, patented and/or copyrighted material;

(2)    Records held by the borough pertaining to any client, customer, tenant, operator, use or subscriber, the release of which would constitute an unwarranted invasion of privacy of that person or entity;

(3)    Records of engineering, marketing, accounting or other technical or financial data, which, if released, would provide a competitive advantage to any other persons or business engaged in similar or related activities;

(4)    Proprietary information which a manufacturer, consultant or provider reasonably expects to be kept privileged or confidential to protect the property interests of persons providing the information or data; and

(5)    Personal information other than name and address given to the borough with the legitimate expectation of privacy in conjunction with licenses, permits or other borough services.

(c)    This chapter shall not be construed to require disclosure of the following law enforcement records or information:

(1)    Records or information compiled for law enforcement purposes, but only to the extent that the products of the law enforcement records or information:

a.    Could reasonably be expected to interfere with enforcement proceedings;

b.    Would deprive a person of a right to a fair trial or an impartial adjudication;

c.    Could reasonably be expected to constitute an unwarranted invasion of the personal privacy of a suspect, defendant, victim, or witness;

d.    Could reasonably be expected to disclose the identity of a confidential source;

e.    Would disclose confidential techniques and procedures for law enforcement investigations or prosecutions;

f.    Would disclose guidelines for law enforcement investigations or prosecutions if the disclosure could reasonably be expected to risk circumvention of the law; or

g.    Could reasonably be expected to endanger the life or physical safety of an individual.

(2)    Name, address, telephone number or other identifying information about complainants in actions to enforce building, zoning, environmental, animal protection or other borough ordinances or regulations. This subsection does not protect from disclosure the contents of the complaint, so long as the complainant is not identifiable; or the name of the complainant when such disclosure becomes necessary to fair and just disposition of the charge or complaint in enforcement proceedings.

(d)    This chapter shall not be construed to require disclosure of the following personnel records or information:

(1)    Borough personnel records, including examination materials; and medical records which reveal financial or medical status of any specific individual and, in addition, those records the disclosure of which would constitute an unwarranted invasion of privacy. This subsection does not protect from disclosure the following personnel information:

a.    Employment applications and examination materials of borough officials appointed by the borough assembly;

b.    The names and position titles of all borough employees;

c.    The position held by a borough employee;

d.    Prior positions held by a borough employee;

e.    Whether a borough employee is in a collective bargaining unit;

f.    The dates of appointment and separation of a borough employee; and

g.    The compensation authorized for a borough employee. A borough employee has the right to examine the employee’s own personnel files and may authorize others to examine those files.

(2)    Information which municipal governments engaged in collective bargaining regularly consider to be privileged or confidential for purposes of successful collective bargaining.

(e)    This chapter shall not be construed to require disclosure of the following privileged records or information:

(1)    Communications from the borough attorney which contain legal questions concerning potential, pending or actual litigation and any labor negotiation. This subsection does not protect from disclosure documents which were public records prior to the commencement of the litigation, and public records which are otherwise subject to disclosure by mere submission to the attorney. Any documents marked “confidential” which are submitted from the borough attorney’s office shall only be produced if the borough attorney so authorizes. However, when all causes of action have been resolved by final judgment or when further claims arising from the matter are otherwise barred, the borough manager may waive the attorney-client privilege by release of the documents. With respect to a person involved in litigation, the records sought shall be disclosed in accordance with applicable court rules; and

(2)    Information obtained by and in the custody of insurance carriers insuring the borough and their attorneys and agents regarding possible and pending claims against the borough.

(f)    This chapter shall not be construed to require disclosure of records or information specifically prepared for or produced during a legally convened executive session; provided, however, that public records which are otherwise subject to disclosure may not be protected from disclosure by mere submission during an executive session. Further, once an executive session sound recording is made open to and available for public inspection under KGBC 2.10.160(d)(6), attorney-client privileged records or information specifically prepared for or produced during that executive session may be disclosed unless the borough attorney determines that a need remains to maintain the attorney-client privilege for those records, or the borough manager declines to waive the attorney-client privilege by releasing the documents.

(g)    Notwithstanding subsections (a) through (f) of this section, any person or entity who applies for a loan, grant or other benefit under the borough’s economic development and assistance program under Chapter 4.25 KGBC is deemed to have consented to the public release of any and all financial records provided to the borough in connection with that application which are not provided under separate cover indicating that the information is confidential and identifying the documents as falling within one (1) or more of the following exemptions from disclosure:

(1)    Income tax returns;

(2)    Financial statements, profit-and-loss statements, and cash flow projections, except the information required by the authority to calculate debt service coverage on the loan;

(3)    Financial business plans;

(4)    Credit reports from consumer reporting agencies and other credit information obtained from banks, creditors, or other credit reporting entities;

(5)    Trade secrets;

(6)    Appraisals, except the name of the appraiser, the date of the appraisal, and the fair market value determined for the property appraised;

(7)    Market surveys and marketing strategy information; and

(8)    Any information required to be kept confidential by a federal law or regulation or by state law.

Any and all financial records provided to the borough in connection with an application under the borough’s economic development and assistance program under Chapter 4.25 KGBC which are not exempt under this section are considered public documents which may be made available for inspection and copying under KGBC 2.120.010.

(h)    This chapter shall not be construed to prohibit the borough manager or designee from disclosing records or information identified as confidential or privileged in this chapter when, and to the extent, the borough manager determines such to be appropriate in the furtherance of the conduct of borough business.

Nothing in this section shall prevent an assembly member, the mayor, or an agent of the borough from reviewing information otherwise confidential under this section if that person has a valid borough purpose for reviewing the information and if the person agrees to maintain the confidentiality of the information. [Ord. No. 1684A, §§8 – 10, 9-16-13; Ord. No. 1126A, §2, 3-06-00; Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.035.]

Editor’s Note: The code language amended by Ordinance No. 1684A applies only to executive sessions held after January 1, 2013.

2.120.080 Filing of exempt records.

Borough records classified as exempt from public disclosure under KGBC 2.120.070 shall be maintained in files providing for physical separation from general borough records subject to public review. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.040.]

2.120.090 Denial of request – Appeal.

(a)    If the borough official who is the custodian of a record considers the information requested to be confidential pursuant to applicable federal, state, or borough law, within ten (10) working days of receiving the request shall prepare and provide the requester a written statement setting forth the following information:

(1)    Date;

(2)    Item of information requested;

(3)    The specific provision of applicable state, federal or borough law exempting the requested information from disclosure;

(4)    The title and signature of the official withholding the information; and

(5)    The right of the requester to appeal the decision pursuant to subsection (b) of this section.

(b)    In the event a party is denied access to requested information under the provisions of subsection (a) of this section, the person may submit a written appeal to the borough manager. Within ten (10) working days of receiving the appeal, the borough manager shall issue a written response to the requester, either granting or denying the appeal and notifying the requester of the right to appeal the decision to the borough assembly which shall be the final and binding authority. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.045.]

2.120.100 Records management program creation and administration.

(a)    The borough clerk shall establish and maintain a borough records management program which shall include retention schedules and procedures for inventory, storage, and destruction of records as necessary.

(b)    The program objectives shall be to:

(1)    Provide coordination between departments on all phases of the records management program; and

(2)    Facilitate exchange of ideas on all aspects of records management among departments to permit savings through more uniform and efficient paperwork techniques. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.050.]

2.120.110 Ownership of records.

All borough records shall be and remain the property of the borough and may not be removed, destroyed or disposed of, except as provided in this chapter. They shall be delivered by outgoing officials and employees to their successors and shall be preserved, stored, transferred, and otherwise managed, only in accordance with the provisions of this chapter or as otherwise provided for by law. The borough clerk may initiate actions to recover records unlawfully removed from borough possession. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.055.]

2.120.120 Responsibility of the borough clerk.

The borough clerk, in providing for the administration of the records management function, shall:

(a)    Develop standards and procedures for the management of all borough records which shall include:

(1)    Standards and procedures for preservation and protection of vital and historical records as part of the overall records management program; and

(2)    Standards and procedures for conversions to micrographic as a part of the overall records management program;

(b)    Oversee and assist borough departments to comply with borough files and records standards and procedures;

(c)    Advise and assist borough departments in the preparation of records inventories and retention schedules;

(d)    Provide and maintain a records storage area to house records no longer required in active office areas but which required further retention under adopted records retention schedules. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.060.]

2.120.130 Responsibility of the departments.

The head of each borough department is responsible for:

(a)    Establishing and maintaining file systems in compliance with prescribed standards and procedures;

(b)    The preparation and periodic revision of a departmental records retention schedule which shall be submitted to the records management planning committee;

(c)    The physical inventory of all records created and maintained in their own department;

(d)    The preparation of inactive records for micrographic conversion and/or for relocation to the records storage area. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.065.]

2.120.140 Records management planning committee.

(a)    There shall be a records management planning committee which shall include the manager, attorney, finance director, and the clerk.

(b)    The principal functions of the records management planning committee are to assess the borough’s records management situation, evaluate the adequacy of the systems in place, identify records management needs, prioritize those needs, and provide support for the total records management program. [Ord. No. 1907AS2, §8, 4-20-20; Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.070.]

2.120.150 Approval and adoption of retention schedules.

(a)    The records management planning committee shall review recommended retention schedules submitted by borough departments and forward recommended retention schedules to the assembly for adoption.

(b)    The borough assembly shall by resolution adopt records retention schedules for the borough.

(c)    When a records retention schedule is adopted by the assembly, it shall constitute full authority in advance to periodically destroy, transfer, microphotograph or take other authorized actions relative to borough records. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.075.]

2.120.160 Noncurrent records not to be maintained in office files.

Records no longer required in the conduct of current business by any office of the borough shall be promptly transferred to the records center or be destroyed, at the time such action is designated on an approved records retention schedule. Such records shall not be maintained in current office files or equipment. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.080.]

2.120.170 Disposal of records.

(a)    Records may be disposed of by returning to the original owner, or destruction, if the following requirements are met:

(1)    The records requested to be disposed of are not vital or historical records or if such records have been reproduced in accordance with this chapter;

(2)    A request for said disposal, which shall include a physical inventory of these records sufficiently detailed to identify them, from the department or office from which the records originated has been submitted and proper authorization has been granted; and

(3)    The records requested to be disposed of have met the minimum retention periods as prescribed by the assembly by resolution.

(b)    Materials that may be disposed of as soon as they have served their purposes include catalogs; copies of records; work drafts; working papers accumulated in preparation of a communication, study or other writing; telephone message slips; voice mail messages; computer email messages; and the following materials if they do not add information: letters of transmittal; suspense copies when a reply has been received; routine requests for information and publications; tracer letters; feeder reports and the like.

(c)    Records of a confidential nature shall be disposed of by shredding or burning. All other records shall be disposed of in any appropriate manner.

(d)    The borough clerk shall retain on file the physical inventory of the records which were disposed of together with a record of the disposal itself. The borough clerk shall transmit a copy of the disposal record and the document list to the assembly and to the office from which the records were drawn. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.085.]

2.120.180 Micrographic program established.

A centralized micrographic program may be designed and implemented by the borough clerk to serve all borough offices and departments. No office or department shall operate a separate micrographic program, and no borough funds may be expended to film, or to contract with a service company to film, any borough records, except through the borough clerk’s office. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.090.]

2.120.190 Micrographic standards.

Microfilm used for archival or security purposes must meet or exceed the technical standards for quality, density, resolution and definition of the American National Standards Institute (ANSI) as required by law. The master negatives of such film shall not be used for making use copies and shall be stored off site. Microfilm records must be indexed. The borough clerk shall check and certify that a microform record is a true and accurate duplication of the original record. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.095.]

2.120.200 Alteration and replacement of public records.

(a)    An original public record that is worn or damaged may be replaced by a reproduction that produces a clear, accurate and long-term copy or reproduction of the original record. Certification by the borough clerk that the replacement is a correct copy of the original shall appear at the end of the reproduction. When original public records are photographed or otherwise mechanically reproduced under the provisions of this chapter and the reproduction is placed in conveniently accessible files and provisions are made for preserving and using them, the original records from which they were made may be destroyed as provided by this chapter.

(b)    Reproductions or replacements of records made under this chapter are considered original records for all purposes and are admissible in evidence as original records. [Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.100.]

2.120.210 Penalty.

Any person who shall willfully violate any provision of this chapter is guilty of a violation, and, upon conviction, shall pay a fine of not to exceed $300. [Ord. No. 1607, §3, 10-3-11; Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.105.]

2.120.220 Definitions.

Unless the context otherwise requires:

“Certified copy” means a copy of a document certified as correct by the borough clerk.

“Disposition” means either the transfer of inactive records to the records center or the disposal of noncurrent records by destruction.

“Financial information” or “financial records” means accounting records, books, financial statements, tax returns, balance sheets, profit and loss statements, accounts receivable, accounts payable, bank statements, and other similar records.

“Historical record” means those public records that are retained for purposes of history and not necessarily for business purposes.

“Microform” means the format in which microfilm is generated. It may be a roll, cartridge, jacket, fiche, or an aperture card.

“Micrographic” means the use of various forms of microfilm in the management of records and information.

“Physical inventory” means a complete listing of file contents by record or record series, together with sufficient supporting data to enable a proper evaluation for determining retention periods.

“Proprietary information” means information regarding techniques, methods, strategies, or other unique data in which a valuable property interest may be established or which may be used by one (1) person or entity for a competitive advantage.

“Public records” or “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 borough, or a private contractor for the borough, and that are preserved for their informational value or as evidence of the organization or operation of the borough; “public records” or “records” does not include proprietary software programs.

“Record series” means a group of related records which are normally used and filed as a unit and which permit evaluation as a unit for retention scheduling purposes, a “record series” may contain both forms and correspondence.

“Records management” means the professional management of information in the physical form of records from the time records are received or created through their processing, distribution, and use to placement in a storage and retrieval system until either eventual elimination or identification for long-term archival retention.

“Retention period” means the period of time established in accordance with statutory or other requirements which must elapse before disposition may be made of records.

“Vital records” means those public records necessary to assure continuance of essential governmental operations to protect the legal and financial operation of the borough in the event of disaster or catastrophic loss of the borough’s records. [Ord. No. 1126A, §3, 3-06-00; Ord. No. 974, §2, 8-21-95. Code 1974 §5.90.110.]