Minutes of the Quarterly Meeting
June 14, 2001
Department for Libraries and Archives
Department
of Charitable Gaming
Department
of Corrections
Department
of Insurance
Department
of Law
Legislative
Research Commission
Department
for Local Government
City
of Louisville
Public
School District Model
Revenue
Cabinet
Workers'
Compensation Funding Commission
Jefferson
County Police Department
The State Archives and Records Commission met June 14, 2001, in the Board Room, Kentucky Department for Libraries and Archives (KDLA).
Members present: Dr. Thomas D. Clark, representing the University of Kentucky; Paul F. Coates, representing Citizens-at-Large; Dr. Jack D. Ellis, representing Citizens-at-Large; Lynne Hollingsworth, representing the Kentucky Historical Society; Dr. Linda E. Johnson, representing Citizens-at-Large; and Dr. William J. Morison, representing regional colleges and universities.
Representatives present: Louis DeLuca, representing Dr. Marlene M. Helm, Secretary, Education, Arts and Humanities Cabinet; Stephanie Robie, representing Ed Hatchett, Auditor of Public Accounts; Leslie Smith, representing Robert Sherman, Director, Legislative Research Commission; Amye Bensenhaver, representing A. B. Chandler, III, Attorney General; Brandon Haynes, representing Joseph E. Lambert, Chief Justice, Supreme Court; Charles Robb, representing Aldona K. Valicenti, Chief Information Officer, Governor's Office for Technology; and Geoff Pinkerton, representing Dr. James R. Ramsey, State Budget Director, Governor's Office for Policy and Management.
Members not present or represented: Carolyn Nichols, representing local governments; Cheryl Jones, representing Citizens-at-Large; and Shelia E. Heflin, representing the Kentucky Library Association.
Public Records Division staff present: Richard N. Belding, Director, Public Records Division; Diana Moses, Manager, State Records Branch; Jerry Carlton, Manager, Local Records Branch; Glen McAninch, Manager, Technology Analysis and Support Branch; Milton Matzke, Manager, Micrographics Branch; Jim Cundy, Regional Administrator; Gerald Thompson, Regional Administrator; Jim Terry, Administrative Specialist; Sunnye Smith, Grants and Contracts Specialist; and B. J. Webster, Administrative Secretary.
Guests present: Linda Janes, City of Louisville Archives; Shirley Botkins, Jefferson County Schools; and Lisa Carnahan, Kentucky Press Association.
For the record, Nelson called for introductions of Commission members.
Dr. Clark made a motion to accept the minutes of the previous Commission
meeting, seconded by Dr. Ellis. The motion carried.
NEW OR REVISED RECORDS RETENTION SCHEDULES
Department of Charitable Gaming
Diana Moses was the records analyst working on this schedule change. The series being changed is 04897, Quarterly Report File, from a retention of four years to six.
The Division of Charitable Gaming was created in 1994, as part of the Justice Cabinet. In 1998, the division was elevated to a department and was placed in the Cabinet for Public Protection and Regulation. The Department is empowered to license and regulate the conduct of charitable gaming and to license and regulate charitable gaming organizations, facilities, manufacturers and distributors in Kentucky (KRS 238.510). It also conducts financial auditing and undercover investigations. The Charitable Gaming Advisory Committee provides ongoing advice and input to the Department and the General Assembly to assist in establishing effective policy for the licensing and regulation of charitable gaming.
Moses explained that the quarterly report is used to capture data on gross receipts by gaming categories, such as pull tabs, bingo and raffles. Its primary purpose is to determine whether the organization is retaining forty percent of its gross receipts for charitable purposes.
Dr. Morison made a motion to adopt the schedule change, seconded by Dr. Ellis. The motion carried.
Department of Corrections - Administrative Services
Moses was the records analyst working on this schedule change. The series being added to the schedule is 05015, Community Corrections Grant Program File.
The Department of Corrections, which is governed by KRS Chapters 196 and 197, is responsible for managing the daily operations of the state correctional institutions and a variety of community-based services. Its mission is to provide secure, humane incarceration for felony offenders, professional probation and parole supervision, and an opportunity for offenders to acquire skills that facilitate non-criminal behavior. The Department operates twelve adult institutions and oversees three private prisons, with a combined maximum capacity of about 11,127 inmates. It estimates the convicted felon population in custody will be 15,560 by the end of fiscal year 2001 and 16,271 by the end of fiscal year 2002. The Department administers provisions of KRS Chapter 441 relating to jail standards, training of jailers and jail personnel, and jail planning and construction, and may contract with a county fiscal court or local or regional correctional authority to house misdemeanants and persons awaiting trail or sentencing.
The Division of Administrative Services is responsible for providing administrative support functions in the areas of budgeting, accounting, purchasing, facilities management, inventory, research, planning, central offender records, and personnel management.
After a brief explanation by Moses, Dr. Clark made a motion to adopt the schedule change, seconded by Dr. Morison. The motion carried.
Department of Insurance - Division of Health Insurance and Managed Care
Moses was the records analyst working on this schedule change. The series being added to the schedule is 05013, Kentucky Health Insurance Market Research Records. The information contained in the series assists the Department in carrying out its regulatory responsibilities.
The Bureau of Insurance was established in the Office of the Auditor of Public Accounts in 1870. The Auditor appointed the Insurance Commissioner. The Department of Insurance became a separate administrative department of state government in 1934 and the Governor appointed the Commissioner. In 1936, the Department became a division of the Department of Business Regulation. It became a department again when the Division of Insurance was removed from the Department of Business Regulation, in 1950.
The Division of Health Insurance and Managed Care was created by Executive
Order 99-37, issued January 1999, and confirmed by 2000 House Bill 107.
The Division regulates health insurers and managed care plans and oversees
the Guaranteed Acceptance Plan. The Division has a health care insurance
compliance branch, a health care financing
branch, and a health care insurance quality in managed care branch.
The Division was previously part of the Division of Life and Health.
Dr. Ellis made a motion to adopt the schedule change, seconded by Dr. Johnson. The motion carried.
The schedule for the Jefferson County Police Department was to be next on the agenda. As agency representatives were not present, Nelson deferred discussion until after the balance of the schedules under consideration were reviewed.
Department of Law - Consumer Protection Division
Moses was the records analyst working on this schedule change. The series being added to the schedule is 05011, Request for Conviction Record. The record documents background checks on professional solicitors and fundraising consultants completed by the Department.
The elective Office of Attorney General is established by the Constitution of Kentucky. Sections 91 and 93 of the Constitution provide that the duties of the Attorney General shall be those prescribed by law. Other sections of the Constitution that pertain to the Attorney General include: Section 84 (petition to have Governor declared disabled), Section 87 (service as acting Governor), Section 92 (qualifications), Section 95 (time of election), and Section 96 (compensation).
The Consumer Protection Division enforces the provisions of the Consumer Protection Act (KRS 367.110 - 300) that prohibits unfair, false, misleading and deceptive business acts or practices. It investigates consumer matters, mediates consumer complaints, promotes consumer education, serves as staff to the Governor's Consumer Advisory Council, and operates the Cemeteries and Funeral Homes Program (KRS 367.932 - 991).
Dr. Clark made a motion to adopt the schedule change, seconded by Dr. Morison. The motion carried.
Legislative Research Commission - Budget Review
Moses was the records analyst working on this schedule change. The series being added to the schedule is 05014, Budget Review Session Workpapers. The series documents the proceedings of the Budget Review Committee, during regular sessions of the General Assembly. During the sessions, Budget Review meets to study and make proposals on the Commonwealth budget to the members of the Appropriations and Revenue Committee.
The legislative powers of the Commonwealth are vested in the General Assembly and found under Sections 29 to 62 of the Kentucky Constitution. The purpose of the Legislature is to make the state's laws, to determine the duties and services of the government, to provide for their execution, and to levy taxes and appropriate funds for their support.
The Legislative Research Commission acts as the administrative arm of the General Assembly. It is a statutory agency created and maintained since 1948. Its membership is bipartisan and is composed of the leadership of both the House and Senate, with the President and the Speaker serving as co-chairmen. The Commission and its staff provide the administrative support necessary for the General Assembly; ensure that the statutory requirements as set forth in the Kentucky Revised Statutes are met; and provide the general public with information through the Public Information Office.
Dr. Ellis made a motion to adopt the schedule change, seconded by Dr. Morison. The motion carried.
Department for Local Government - Financial Services
Moses was the records analyst working on this schedule change. The series being added to the schedule is 05016, Special District Budget File. The series documents the submission of special taxing district budgets to the Department, as required in KRS 65.065 (1).
In 1982, the Department for Local Government was organized under the Office of the Governor, as an independent agency of the Commonwealth. It coordinates for the Governor the state's responsibility for certain federal programs, provides technical assistance to units of local government, exercises functions of the state local finance officer, and requires reports of local governments (KRS 147A.021). In 1994, the Department was charged with fixing the annual rate of compensation to which Commonwealth's attorneys and county attorneys are entitled, pursuant to the increase or decrease in the Consumer Price Index. It is also charged with maintaining a list of cities and counties that have adopted a code of ethics, and notifying state agencies of cities and counties that do not adopt a code. The Commissioner's Office establishes and maintains a liaison with state and federal agencies that deal with local governments and the state's fifteen Area Development Districts.
The Division of Financial Services is responsible for technical assistance on local fiscal matters. It manages and distributes the Local Government Economic Assistance Fund,
the Local Government Economic Development Fund, and the County and Municipal Road Aid Program. Among its statutory duties are calculation of the maximum compensation for elected officials, collection of annual audits and financial statements from municipalities, and collection and compilation of uniform financial information from all cities, counties and special taxing districts. It is also responsible for the duties and functions relating to the State Local Debt Officer.
Moses explained that it has been a requirement since 1998 that special taxing districts submit copies of their budgets each year to the Department. The fiscal court in each locality also maintains a copy. Statistical analysis of the information is not conducted, as the Department does not receive updates or changes to the budgets. The transfer of the budgets is to ensure a central location for the information, for access purposes.
Dr. Johnson questioned why duplicate copies of the budgets needed to be in existence. Moses explained that statutes prescribed which agencies were to receive copies. Ms. Robie said that from the standpoint of the Auditor's Office, it was very helpful to have the budgets in a central location, rather than dispersed throughout Kentucky's 120 counties.
Ms. Robie made a motion to adopt the schedule change, seconded by Mr. Coates. The motion carried.
City of Louisville - Checklist
Cundy was the regional administrator working on this schedule change. The series being added to the schedule are L4572, Agency/Department Policy and Procedure Manual, and L4578, Miscellaneous Photographs, A/V Tapes, CDs, or Audiotapes.
The Checklist is a list of records that may be produced by any department/agency of the City of Louisville. These include payroll records, agency copies of personnel records, agency copies of financial records, correspondence, etc.
Cundy said that the Advisory Committee raised concerns about the disposition instructions for series L4578, which provides for the destruction of those items not identified. The series is comprised of mainly photographs, none of which has been destroyed. Photographs that have not been properly identified are of very limited value. Ms. Janes, City of Louisville Archives, was agreeable to a change in the disposition instructions that provides for the return of unidentified photographs to the creating agency for proper identification. Cundy will amend the disposition instructions to so reflect the proposed new language. Janes believes the revised disposition will reinforce the need for agencies to properly identify photographs before their transfer to the Archives.
Dr. Clark made a motion to adopt the schedule change, seconded by Dr. Morison. The motion carried.
Public School District Model - Central Office - Superintendent
Cundy was the regional administrator working on this schedule change. The series being added to the schedule are L5125, School Volunteer Records Check; L5126, Minority Education Recruitment and Retention Reports; and L5127, Local School District Technology Plans.
Cundy explained that the General Assembly passed a law during the 2000 Regular Session requiring that criminal background checks be completed on any volunteer in the Kentucky school system. L5126 and L5127 represent copies of records issued and maintained by local school districts. In both cases, the Department of Education retains the record copies.
After a brief discussion, Dr. Clark made a motion to adopt the schedule change, seconded by Dr. Morison. The motion carried.
Revenue Cabinet - Department of Property Valuation
Moses was the records analyst working on this schedule change. The series being changed are 03367, Application for Exemption Under the Homestead Amendment, from an eight year retention to five; and 03368, Application for Valuation, Assessment and Taxation Under the Agriculture and Horticulture Land Use Act, from a retention of eight years to five. The series is also being closed. The series being added to the schedule is 05012, Proof of Disability for Homestead Exemption File.
The Revenue Cabinet is the chief revenue collection agency for Kentucky State government. As such it is responsible for administration of all General Fund taxes, major Road Fund taxes, and the assessment and collection of 44 separate state taxes. The Cabinet's duties include equalization of tax assessments, assessment of public utilities and public service corporations, and enforcement of revenue and tax laws (KRS 131.030).
The Department of Property Valuation is responsible for the administration and supervision of the programs and processes involved in state and local property tax assessment and equalization, and in state and local tax collection. The duties of the Department include providing administrative support, technical assistance and supervision to 120 Property Valuation Administrator's offices and the coordination of the property tax activities of sheriffs, county clerks and other local officials. In addition, the Department directly assesses public service companies and various other classes of property; administers the centralized Motor Vehicle Tax System; administers the centralized Intangible Property Tax Assessment System; administers a program to audit taxpayer compliance in listing tangible and intangible personal property; administers the mapping program; and administers programs to collect delinquent and omitted taxes.
After a brief explanation by Moses, Dr. Ellis made a motion to adopt the schedule change, seconded by Dr. Johnson. The motion carried.
Workers' Compensation Funding Commission
Moses was the records analyst working on this schedule change. The series being changed are 04382, Quarterly Assessment Record File, with an increase in retention from eight years to twelve; and 04383, Quarterly Premium Reports, with an increase in retention from eight years to twelve.
The Commission was created pursuant to House Bill 1, enacted during the 1987 Extraordinary Session of the General Assembly. In 1994, it was transferred from the Revenue Cabinet to the Labor Cabinet. It is the sole financing mechanism for the Special Fund and most of the programs administered by the Labor Cabinet, which were previously funded from assessments of the maintenance fund. The Commission is responsible for controlling, investing and managing the funds collected pursuant to the Special Fund assessments; and preparing a biennial budget, in conjunction with the Labor Cabinet, for expenditures of the Special Fund necessary to fund programs administered by the Cabinet. It is also responsible for reporting to the General Assembly on the actuarial soundness of the Special Fund, making recommendations to the General Assembly regarding the rate or percentage of assessments needed to fund the Special Fund, and adjusting such rates in accordance with the provisions contained in KRS 342.122.
Mr. Coates made a motion to adopt the schedule change, seconded by Dr. Morison. The motion carried.
Jefferson County Police Department - Internal Affairs
Cundy was the regional administrator working on the schedule change. The series proposed as additions to the schedule are L5123, Internal Affairs Investigation File - Substantiated, and L5124, Internal Affairs Investigation File - Unsubstantiated.
The series were initially submitted at the March 2001 meeting of the Commission. Further consideration of the schedule change was deferred to the June meeting. Please refer to the March meeting minutes for additional information.
The proposed series represent a separation of the current internal investigation case file (L0014). The disposition instruction for L0014 provides for its destruction three years after termination of the officer's employment. The proposed changes provide for the destruction of substantiated files five years after the date of disciplinary actions and the destruction of unsubstantiated files one year after final rulings.
Cundy said that the Jefferson County Police Department (JCPD) considers the files to be administrative and minor in nature. Administrative infractions are violations of standard operating procedures and administrative rules, as opposed to criminal actions, which would be investigated through the Department's Criminal Investigation Unit. Cundy said the files could be thought of as purely administrative in nature and one could question whether a minor infraction should be held against an officer for the entire length of his employment. Cundy said that his survey of similar institutions within the state, as well as surrounding states, did not result in any clear pattern of retention. The Jefferson County Police Merit Board also maintains pertinent information about disciplinary cases, according to Cundy.
In opposition to the change, Cundy said it could be questioned whether the importance of the records should be downplayed, that how police agencies monitor sworn officers and the fairness of the procedures employed are importance issues. Cundy mentioned Attorney General Opinion 00-ORD-181, which notes that a police officer's right to privacy does not outweigh the public's right to know. While there is no clear pattern of retention, Cundy said that most police agencies do keep similar files for a longer period than that proposed by the JCPD. Relevant precedent in Kentucky also works against approval of the change.
Dr. Clark said there seemed to be tremendous suspicion of police departments. He asked if the records in question were administrative or did they have some vital, far-reaching implications. Cundy said the case could be made either way. It could be said that it is an administrative record and that the complaints are relatively minor in nature or it could be said that there are greater implications.
Nelson said that the accountability of the officer and the accountability of the agency as an organization and certain issues it deals with would be of public interest. Nelson said he did not think the representatives from the JCPD who attended the March meeting of the Commission clarified that aspect of the proposed changes.
As it did in March, Cundy said that the Advisory Committee recommended that the Commission not approve the change. Dr. Johnson asked for specifics of the survey Cundy conducted, prior to the March meeting. The City of Columbus, Ohio, Police Department retains its records for seven years from the date of disposition; Cleveland, Ohio, retains similar records permanently; Montgomery County, City of Dayton, retains records for five years following the date of final disposition; Marion County, City of Indianapolis, retains its records permanently; Allen County, Fort Wayne, Indiana, retains similar records for five years after the final ruling and permanently, if the case involves the death of a civilian or termination of the officer; Davidson County, Nashville, Tennessee, retains its records for ten years; and Knox County, Tennessee, retains its records permanently.
In Kentucky, the City of Louisville retains substantiated records for three years following termination of employment, which is the current retention period for the JCPD, and unsubstantiated cases for two years after the close of the investigation. The Lexington-Fayette Urban County Police Department retains substantiated records for three years following termination of employment. The unsubstantiated are destroyed after two years.
Dr. Johnson asked if those surveyed made a distinction between administrative and criminal investigations. Cundy said that most did not. Dr. Johnson then asked if a copy of the administrative investigations was on file with any other organization. Cundy responded that the JCPD would have the only copy of the investigation itself. The Merit Board would have a record of the proceedings and the final disposition. The officer's personnel file also would contain relevant information.
Ms. Bensenhaver said that whether it was appropriate or not, current public feeling is one of distrust of law enforcement officials. Because of that, Bensenhaver did not believe this was a good time to be considering a reduction in the retention period for documents that not only reflect the activities of police officers, no matter how egregious or minor, but also reflect how the law enforcement agency itself metes out punishment. At the time of the March meeting, Bensenhaver had two appeals pending that involved access to internal affairs investigation reports, plus an additional one currently pending. Bensenhaver said that there is greater public interest in these matters rather than less. Bensenhaver believes the distinction between administrative investigations and criminal ones is not helpful. In assisting Cundy in his research, Bensenhaver said that appeals involving such investigations had been recurring and that public interest is even more heightened now. Even though information about the proceedings and final resolution of investigations is made a part of the officer's personnel file, as well as on file with the Merit Board, a person seeking information should not have to use creative thought processes to determine to whom requests should be directed. The most obvious place to seek such information is from internal affairs offices. If the information requested is not available from internal affairs because it no longer exists, that could, in effect, end the inquiry.
Dr. Clark said that what has been most evident is the air of suspicion that has hung over the discussions at both this meeting and the one in March. Bensenhaver said it was her view that being more forthcoming eliminates suspicion. The more an agency can offer that what it has done is proper and correct, the more suspicion is eliminated. Bensenhaver supports a longer retention period for the information than that proposed by JCPD.
Coates asked if Bensenhaver would want to suggest a retention period. Bensenhaver said retaining the current disposition of destroying the records three years after termination of employment was satisfactory and appears to be an appropriate instruction. Bensenhaver believes a bigger profile and a greater sense of how fairly and justly conduct is monitored is more apt to achieved by not differentiating between administrative versus criminal or substantiated versus unsubstantiated.
Lisa Carnahan, representing the Kentucky Press Association, said that Bensenhaver had covered many of the objections the Association would have to a reduction in the retention of the files. Carnahan said that the Association is obviously inherently opposed to the closure of records in general. In this case, the Association believes it is vital that the public is able to analyze the performance of police departments. Carnahan said that even though the information about investigations might reside elsewhere, there is concern that requests made to smaller departments might not go beyond internal affairs, if the requestor is not aware of alternative locations for the information sought.
Another concern of the Association is the hiring of officers. According to Carnahan, there is a good deal of job mobility and officers frequently move from one department to another. If there isn't a central location for information about previous infractions, officials may not be able to adequately analyze the background of an individual being considered for employment. Investigations that are determined to be unsubstantiated may be so not because of insufficient evidence but because complaints are dropped. Carnahan believes it is important to know all the circumstances of an investigation, not just the final disposition, particularly when a department is contemplating hiring an individual.
Carnahan also said that counsel for the Press Association was concerned that information needed by police departments to respond to allegations of violations of Kentucky's Civil Rights Act might not be available if the files had a shorter retention period. The Act includes a five-year statute of limitation for cases of discrimination filed in Circuit Court. That means than an employer faced with such a claim must be able to produce records of the employee and comparable employees that date five years prior to the initiation of the lawsuit. A reduction in the retention period of the files could make it impossible for a police department employer to adequately defend a discrimination claim.
Carlton said that, aside from Jefferson County, all other police departments in the state use the Local Government General Records Retention Schedule for disposition of similar records. Although the Lexington-Fayette Urban County Police Department has its own schedule, dispositions correspond to those in the General Schedule. Both schedules use the terms "formal" and "informal" to differentiate between the types of investigations. Formal investigations are those that go through a more stringent review, whether the allegations are administrative or criminal in nature, while the informal ones may be heard by a superior officer and action taken at that level. The disposition instruction for formal cases is to destroy them three years after termination of employment and for informal destruction of the cases two years after the incident. Dr. Clark asked if the informal cases resulted in a record being retained. Carlton said that there should at least be a record of the complaint.
Coates made a motion that the Commission adopt the retention periods noted above, for the purpose of uniformity. Coates said that he liked the "formal" and "informal" case designations, although he doubted whether the Commission could impose the distinctions on the police departments.
Dr. Morison asked if Bensenhaver was comfortable with the above designations and she responded that she wasn't. The reason, Bensenhaver said, is the court case Board of Medical Licensure versus the Courier Journal, where the court rejected the distinction between formal and informal complaints. The case involved disciplinary action against a doctor. In the present context, Bensenhaver said that very often a person who files a complaint has a concern about retaliation or just a general fear of coming forward with an allegation against a police officer. Because of that, a complaint might be designated as informal and Bensenhaver said she is uncomfortable with that. In an opinion issued by the Attorney General's Office involving the City of Louisville and the Courier Journal, the designation of informal also was rejected. The case involved the City's internal affairs unit. Bensenhaver said there is at least some legal precedent for rejecting the distinctions. Although the police departments might be comfortable with them, Bensenhaver does not believe such distinctions serve the public's interest. An informal complaint resulting in no action being taken can be just as telling as a finding of use of deadly force, and termination of an officer as a result. Bensenhaver said that she has not encountered any open records appeals that relate to the Jefferson County Police Department. Bensenhaver said that her comments were not meant to cast any aspersions against the JCPD, she just believes that with heightened public interest in such matters that this is not the time to reduce retention periods or make distinctions between types of investigations that the law does not necessarily recognize.
Coates said that the informal/formal designations related more to the dispositions for the series, not their descriptions. If a complaint is received, it may be considered serious enough to be formally pursued, or it could be seen as a meretricious type of charge and handled less formally.
Nelson asked Coates to restate his motion. Coates based the motion on the comments Carlton made regarding the retention periods for similar records found in the Local Government General Records Retention Schedule and the schedule for the Lexington-Fayette Urban County Police Department. The retention periods are three years for formal and two years for informal investigations. The motion is that all law enforcement agencies in the state follow the same retention and disposition requirements as those listed in the referenced schedules. After recounting the above retention requirements, Carlton said that possibly the formal and informal designations should be re-visited, meaning that the distinctions could be removed and there be just one series that incorporates all internal affairs investigations. The retention period for the same records created by the JCPD is three years after termination of the officer, making that agency's requirement more rigorous than the rest of the state. There is no distinction between formal and informal.
Johnson expressed her concern that when an investigation is conducted, information about it would be located in several places, i.e., internal affairs, the individual's personnel file and the Merit Board. Moses said that the only complete record of the investigation would be found in the file maintained by internal affairs. The Merit Board would be advised of the facts of the case and its final disposition and similar documentation would be found in the individual's personnel file. Nelson said that the file that would have the most importance, particularly for open records requests, would be the investigative file maintained by internal affairs.
Dr. Johnson seconded the motion made by Mr. Coates to make the retention and disposition requirements for internal affairs investigative case files uniform across the state, which would include those created and maintained by the JCPD. Bensenhaver said that the reason she would oppose the motion is that she is not sure a distinction can be made between formal and informal investigations that is recognized legally. Robb said that since the JCPD does not make a distinction between formal and informal investigations, it could erode their accountability if the distinctions are imposed on them through approval of the motion. Currently, JCPD's requirements are more rigorous than that being proposed. Johnson said she saw no reason to differentiate between Jefferson County and the other law enforcement agencies. Johnson said she supported Coates' motion and that at such time as police departments wanted to challenge the state model and make a recommendation at some later point about a different retention requirement, it could be addressed at that time. Robb said that police departments probably would not come before the Commission asking for more accountability, which is a larger issue. Carlton said that it would not be a problem to do more research and to re-visit the issue of formal and informal. Carlton said that if use of formal and informal as to types of files was the problem, then the disposition could simply be to destroy the files three years after termination, to apply to all departments. DeLuca said that perhaps the Jefferson County Attorney should be consulted, as to the legality of using formal and informal to differentiate between cases.
Nelson reiterated that there was a motion and a second to bring the JCPD into alignment with the balance of the state, as to retention and disposition of internal affairs case files. Dr. Morison asked if it would not be a better course of action to try to address the larger picture before addressing the smaller one. Morison asked if there would be harm in allowing the status quo to remain; that is, to retain the current retention requirements for the JCPD and the rest of the state for the moment. Additional action could be deferred until such time as KDLA staff and others, such as the Jefferson County Attorney and the Attorney General's Office, if needed, could lead the Commission to the setting of an appropriate uniform standard for the entire state. Nelson said such action might then do away with the formal/informal distinctions. Coates doubted that that would happen, as this is the second time the question of retention of the files for the JCPD has come before the Commission. Coates did not think it likely that any new information to guide the Commission in its deliberations would be forthcoming. Carlton said that if the Commission so chose, he would propose a uniform retention and disposition for the files for the Commission to consider at its September meeting.
Nelson said that based on the information it was given, the Advisory Committee recommended that the Commission not approve the retention periods proposed by the JCPD. Coates' motion would bring the JCPD into compliance with the rest of the state, while Morison's suggestion would be to act on the Advisory Committee's recommendation to not change the schedule and to defer any action until staff has had more time to further research the question. Nelson asked if Coates and Johnson would accept an amendment to the motion that would accept the Advisory Committee's recommendation and allow staff to pursue further research, with a recommendation to be proposed in September. Johnson made a motion to table Coates' motion, with the proviso that staff be ready with a recommendation at the September meeting of the Commission, seconded by Pinkerton. Haynes asked that the motion include a legal reading of the formal/informal designations by the Attorney General's Office. Bensenhaver said there is an open records decision, an advisory opinion, which carries the force of law, that there is no legal distinction between formal and informal, as well as a published opinion of the Court Appeals that also supports that there is no distinction between the two terms. Johnson said that the recommendations that come forward to the Advisory Committee and the Commission in September also should include existing rulings by the Attorney General, as well standard practice in the state and surrounding states. Dr. Ellis asked if supporting the motion would mean that the retention requirements currently in place for the JCPD would remain in effect. Nelson responded that they would. Nelson called for a vote. The motion carried.
The next item was Other Business. Nelson informed the Commission members that he would be leaving the meeting early, as he had a prior engagement in Eastern Kentucky. Before turning the meeting over to Belding, Nelson advised the members of the current budget situation. Nelson said that there was a budget shortfall of $315 million, which meant that all agencies were required to produce budget reduction plans of 5%, 7% and 10%. Nelson explained that there is very little, if any, flexibility in the use of operating funds and that the Department is trying to keep its personnel funds intact. Because of that, grant programs will be the areas of the Department's budget most impacted. If the worst-case scenario comes to pass, i.e., a 10% reduction, local records grant funds would be seriously impacted. The majority of the funding for the Public Records Division comes from agency receipts, which could be affected by reductions in the budgets of agencies that do business with the Division, Nelson said.
Pinkerton said that the budget-forecasting group was also due to meet June 14th. Budget proposals and the impact of the 5, 7, and 10 percent reductions on the agencies are to be submitted to the Office of Policy of Management by Monday, June 18th. By the end of June, a decision about the reductions should be reached and how each agency and cabinet will be affected. In response to a question from Johnson, Nelson said the reductions were based on the Department's budget of $14.7 million. A 10% reduction was be approximately $1.4 million.
The next item of business was the proposed Louisville/Jefferson County merger. Nelson suggested that the Commission consider the issue and make recommendations regarding how the transition could be managed in going from a city/county to a merged government, particularly in the area of records and archives management. Both the city and the county operate archival facilities. As there seems to be a great deal of confusion, Dr. Clark suggested the first thing that should be done is to define precisely what "merger" means in Jefferson County. Nelson agreed that was a big issue. In regard to libraries, there are laws that deal with cities of the first class and their effect on the community isn't always clear. The Commission needs to think about how to preserve the integrity of the records as the process unfolds, Nelson said.
Before turning over the meeting to Belding, Nelson said the last item of business would be a report on the status of Dr. Greg Hunter's work as consultant to the Department. Nelson said he wanted to schedule a special meeting of the Commission sometime between July 2nd and 6th, for the purpose of hearing the consultant's full report. The Commission members agreed that it would be better to have the meeting the latter part of the week, after July 4th. Nelson said that a subsequent meeting would then be held with cabinet officials and others that have been working on the project, prior to submission of final recommendations to the Capital Planning Advisory Board, July 10th.
Before turning the meeting over to Belding, Nelson congratulated Dr. Ellis on his publication Morehead Memories: Stories from Eastern Kentucky.
In regard to the Louisville/Jefferson County merger, Belding said that a number of outside parties believed that the occasion of the merger would be an opportunity to ensure that existing archives and records programs at the city and county levels are not in any way weakened or placed at a disadvantage. The proposed merger should be viewed as an opportunity to strengthen the programs, as there is always room for improvement when new agencies are created and responsibilities assigned. Belding said that Nelson would like feedback from the Commission at the special meeting mentioned above as to whether it would want to convene a workgroup to study the issue in more detail. A workgroup, perhaps supplemented by additional private citizens, to study the issue would be an appropriate activity, given the Commission's role and interest in the health of public records programs across the state.
Belding then distributed a binder representing an executive summary of the consultant's report, consisting of core findings, recommendations and recommended projected actions for the Department. The full report, Enterprise Electronic Records Program: Assessment and Report, comprises 84 pages. It was available to Commission members, upon request. The full report is a working report that examines and records the findings Dr. Hunter encountered individually through interviews and focus group meetings, and through collection of data at various points. The special meeting of the Commission will be held to gather feedback and comments regarding the final report.
Belding informed the members of a meeting with Dr. Hunter, held subsequent to the March meeting of the Commission. The purpose of the meeting was to receive feedback from a high level group that included: Dr. Marlene Helm, Cabinet Secretary; Louis DeLuca, Deputy Secretary; Aldona Valicenti, Chief Information Officer; Doug Robinson, Executive Director, Office of Policy and Customer Relations, Governor's Office for Technology; Steve Dooley, Deputy Chief Information Officer; David Couch, the cabinet's Chief Information Officer; and various department staff. The group recommended that the longer report be recast into a more accessible document that refined the overall recommendations, hence the executive summary.
One of the key points made in the report is that the Department is looking at a three-pronged approach to dealing with records in the future. One approach obviously deals with the management of electronic records through the creation, at some point, of a digital archives. A second approach involves moving ahead with the Document Management Digitization System (DMDS), for significant format conversion of records not "borne electronic," and the third deals with the archival storage and accessibility questions related to records that are currently in a paper format. Dr. Hunter estimates that the Department has about a twenty-five year horizon of records that will need to be managed in a paper environment. Belding said that Hunter had made a number of recommendations that will require prioritization. Belding said there have been ongoing discussions about staff resources and partnerships with other agencies that would be needed to address the recommendations.
One of the key recommendations is that the state should establish an electronic records advisory committee to provide enterprise-wide discussion and coordination of electronic records issues and concerns. Belding said that Kansas and Ohio have similar committees. Another recommendation was that the Department should consider the use of compact shelving in the State Archives to expand the capacity to house hard copy records. Before any conclusions could be drawn about the use of such shelving, Dr. Hunter suggested that the Department contract with a consulting engineer to have a formal assessment made of the building. Under the advice of the Division of Engineering, Finance and Administration Cabinet, the Department contracted with Pyramid Engineers to do a structural assessment of the building and to look at various options as to whether it had the live-load carrying capacity that the use of compact shelving would represent. Part way through the assessment, Pyramid advised that the building would require a significant engineering retrofit, to reinforce it at various points, in order to carry the additional weight, which would be in excess of what the building could currently handle. In consultation with the Division of Engineering, it was recommended that the Department have Pyramid do a comparison of the cost to retrofit the building versus the cost of new construction for similar kinds of capacity. The engineering firm is in the process of finalizing its report. The report will provide credible information about the cost per square foot to yield a certain storage capacity, to serve the Commonwealth over a specific period of time.
Belding said he was very pleased with the thoroughness of Pyramid in terms of looking at not only the structural issues associated with compact shelving, but also the mechanical systems issues. If compact shelving were to be utilized, it would affect the HVAC system and the capacity of the mechanical systems to sustain the same kinds of environmental requirements for storage that would normally be present in an archival facility. Belding expects the final report from Pyramid to be available by July, when the special meeting of the Commission will be held.
To follow up on Nelson's comments, Belding said that the summer meeting of the Capital Planning Advisory Board was approaching and that the Department would need to submit an amendment of some kind to its initial request. This is necessary because the request was made prior to receipt of Dr. Hunter's final report and the report from Pyramid. The initial request included compact shelving, which might not be the most appropriate option. The amended request would need to be submitted by July 10th. The Capital Planning Advisory Board is scheduled to meet July 24th and 25th to review agency submissions for capital construction projects. Dr. Hunter is scheduled to be on-site for the meetings.
The second planning activity staff has been involved in during this same period relates to the Document Management Digitization System (DMDS). Belding said that initial meetings were held in April with staff from the Governor's Office for Technology who is involved in managing the Strategic Alliance Services (SAS) vendors. SAS is a group of pre-approved providers of technology services, or firms that are on price contract with whom agencies can enter into service request relationships without going through a formal request for proposal process. Staff is currently working on the Statement of Business Problem document to refine and define the scope of what the Department would want in the way of advice from a SAS vendor. DMDS is designed to assist the Department as it moves into a new archival management environment to deal with records that were not borne electronic, that aren't accessible or available in an electronic format, to give the Department the capacity to retain them in a digital or microfilm format. DMDS would also give the Department the capability of converting microfilm into a digital format to accommodate agencies that have moved beyond a paper environment. DMDS would provide an additional strategy over the long run for managing and retaining paper-based records in a digital form and would be a way for the Department to improve and enhance access and improve the efficiency that agencies can achieve in using information that previously existed only in hard copy form.
The last item on the agenda was the review of local records grants. Carlton said that the Advisory Committee recommended approval of all the grants being considered. Carlton informed the Commission members that it was unknown at this time what percent reduction the Department would incur due to the budget shortfall. Carlton asked that the Commission also recommend approval of the grants, with the understanding that staff would make appropriate changes after the exact amount of the reduction in funds was determined.
Carlton then informed the members that Todd County had asked that its application for automated indexing be withdrawn from consideration. The amount of the project would have been approximately $21,000. It was then determined that Estill County's project could be funded with FY 2000-2001 funds. The net effect of these two actions was to reduce the total recommended ($425,494) by $28,000 for FY 2001-2002.
Dr. Clark made a motion to recommend approval of the grants presented for consideration, as a group, to Commissioner Nelson, seconded by Mr. Coates. The motion included the change in the funding as a result of the withdrawal of the Todd County application.
Pinkerton said that the packet containing the particulars of each grant proposal noted that some of the projects were deemed worthy of funding but were considered a lower priority and were therefore rejected or denied. Pinkerton asked if the withdrawal of the application for Todd County would affect the ability of the program to award grants to those projects that were denied. Carlton said that the projects denied would have been denied regardless of the availability of funds.
Belding called for a vote. The motion carried.
The meeting adjourned at 12:00 p.m.