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11212016 City Council Work Session Packet
Seward City Council Work Session Packet 40C Se hel . . It o f 0 4, �r 1 .h1 1 4 i ASO P November 21, 2016 Ci Council Chambers Be,innin ! at 6:00 i.m. City of Seward Monday, November 21, 2016 City Council Work Session 6:00 p.m. Topic: Evaluation forms, procedures and policies for the City Attorney, City Manager and City Clerk Table of Contents 1. City Council Rules of Procedure RE: Evaluations, Freedom of Information 1 2. City Code 2.20.035—2.20.045 (Manager,Attorney, Clerk Duties) 2 3. Current Evaluation Forms for City Manager 4 4. Current Evaluation Forms for City Clerk 6 5. Current Evaluation Forms for City Attorney 9 6. City Code 2.05, Records 14 7. Municipality of Anchorage v Anchorage Daily News(1990) 21 8. City of Kenai v Kenai Peninsula Newspapers(1982) 33 9. Draft Resolution#1 47 10. Draft Resolution#2 49 11. Draft Resolution#3 51 12. Draft Resolution#4 53 COUNCIL RULES OFPOLICYAND PROCEDURE RULE 16.EVALUATION OF APPOINTED OFFICIALS The City Council shall evaluate the performance of the City Attorney, City Clerk and the City Manager separately and annually during the first council meeting in January, February and March of each year. These can be conducted in Executive Session. During the evaluation, the Council shall set goals, priorities and conduct salary negotiation for these appointed officials for the upcoming year. The City Attorney, City Manager and City Clerk will complete a summary stating their accomplishments for the past review period and their goals for the upcoming review period. The City Clerk will provide the necessary blank evaluation forms, and the appointed official's completed goals and accomplishments summary to the Council no later than two weeks prior to the scheduled evaluation. The Mayor can appoint a member of the Council to receive the completed forms and tabulate the results prior to the formal evaluation sessions. At any time, the council may, by majority vote, make a motion to hold additional evaluations as they feel is necessary. [See Appendices for City Manager, City Attorney and City Clerk evaluation forms.] P-6 Council Rules of Procedure Adopted March 14, 1994 As Amended Through June 13,2016 FREEDOM OF INFORMATION State and city law allow liberal access to public records. Public records include any communication, regardless of form, relating to the conduct of city business. All requests for public information are made through the office of the City Clerk. P-23 Council Rules of Procedure Adopted March 14, 1994 As Amended Through June 13,2016 Page 8 507486\1002\00544020 1 • 2.20.035. -City manager duties.17 The city manager shall have the following duties: 1. He shall be the chief administrative officer of the council and shall perform the duties of his office under authority of and shall be accountable to the council. He shall supervise and coordinate the work of the appointed officers and departments of the city,except the city attorney,city clerk and city clerk department,and he shall act as coordinator between those officers and other administrative officers. 2. He shall sign for the city-approved contracts, leases and agreements as authorized by the city council. 3. He may recommend the council's sale and lease of materials, property,equipment and real estate of the city. 4. He shall negotiate such contracts and leases as the council may authorize. 5. He shall recommend to the council a schedule of fees and rates of all types of services performed by the city departments. 6. He may recommend to the council any basic organization and plans for the city departments and enforce changes as approved by the council. 7. He shall prescribe and enforce such rules and regulations as may be deemed necessary for the operation and management of all offices and departments of the city under his control. 8. He shall submit annually a report on the preceding year's financial and administrative activities of the city to the council. 9. He shall present to council a biennial budget proposal for the city, pursuant to§5.05.010 of the Seward City Code. 10. He shall appoint the personnel officer and provide for the management and administration of the city personnel regulations pursuant to Ordinance No.437,as amended. 11. He shall provide for long and short term and municipal planning. 12. He shall provide input and aid in the field of economic development by working with businesses,groups, and individuals interested in locating in Seward. 13. He shall perform the duties as set forth in the charter. 14. He shall perform such other duties as may be required of him by the council. (Ord.483, § 1(part), 1980;Ord. 94-49; Ord. 96-07;Ord. 99-14,§ 1, 1999; Ord. No. 2006-005, § 1, 7-24-2006;Ord. No. 2008-020,§ 1, 1-12-2009) 2 • 2.20.040. -City attorney.is The position of city attorney is hereby established and the individual appointed by council shall have the following duties: (1) He shall advise the council and the city manager, and boards, commissions and all offices and departments of the city,on all matters of law. (2)He shall draft and assist in the drafting of all ordinances, resolutions, contracts and agreements to be made or entered into by the city,and approve the form of such instruments. (3)He shall prosecute violators of this code and other city ordinances and shall represent the city in all actions of law. (4)He shall perform the duties as set forth in the charter. (5)He shall perform such other duties as may be required of him by the city manager or the city council. (Ord.483, § 1(part), 1980) • 2.20.045. -City clerk.19 The position of city clerk is hereby established and the individual appointed by council shall have the following duties: (1)He shall be the clerk of the council,shall attend all meetings of the council and shall keep a record of its proceedings. (2)He shall keep all ordinances, resolutions,contracts and agreements of the city and authenticate such records as shall be necessary. (3)He shall publish ordinances, resolutions and other legal notices as required. (4)He shall administer all city elections and maintain related records. (5)He shall keep informed of all matters pending before the council and other bodies as council may require. (6)He shall keep and maintain appropriate files and records for the accomplishment of his duties. (7)He shall attest to the city manager's signature on all contracts,except as otherwise provided herein,as approved by the council. (8)He shall administer all oaths required by law. (9)He shall be custodian of the city seal and the official records of the city. (10)He shall have the power to appoint deputies, if needed, provided that the appointment of all deputies shall be approved by a majority vote of the council. (11)He shall supervise the city clerk department and shall be responsible for the employment of all employees in the city clerk department subject to the limitations set forth in subsection (10),above. (12)He shall perform the duties set forth in the charter. (13)He shall perform such other duties as may be required of him by law or the city council. (Ord. 483,§ 1 (part), 1980;Ord. 94-49) 3 12B JC 4,t5wp� CITY MANAGER EVALUATION City Manager: Date: A. Communicates Clearly And Effectively With The City Council: (Circle One) 1 2 3 4 5 Unsatisfactory Needs Improvement Adequate Good Excellent Comments and/or suggestions for improvement: B. Accomplishes Council Policies And Priorities: (Circle One) 1 2 3 4 5 Unsatisfactory Needs Improvement Adequate Good Excellent Comments and/or suggestions for improvement: C. Provides Superior Integrity,Honesty,And Leadership: (Circle One) 1 2 3 4 5 Unsatisfactory Needs Improvement Adequate Good Excellent Comments and/or suggestions for improvement: D. Accomplishes Daily Missions And Tasks In All Departments: (Circle One) 1 2 3 4 5 Unsatisfactory Needs Improvement Adequate Good Excellent Comments and/or suggestions for improvement: E. Secures Funding And Support For Future Projects And Long Term Objectives: (Circle One) 1 2 3 4 5 Unsatisfactory Needs Improvement Adequate Good Excellent Comments and/or suggestions for improvement: A-4 Council Rules of Procedure Adopted March 14,1994 As Amended Through June 13,2016 4 4a F. Manages And Maintains Effective Internal Controls,Budgets,And Resources: (Circle One) 1 2 3 4 5 Unsatisfactory Needs Improvement Adequate Good Excellent Comments and/or suggestions for improvement: G. Plans And Prepares For Future Requirements And Emergencies: (Circle One) 1 2 3 4 5 Unsatisfactory Needs Improvement Adequate Good Excellent Comments and/or suggestions for improvement: H. Is Responsive To The Public: (Circle One) 1 2 3 4 5 Unsatisfactory Needs Improvement Adequate Good Excellent Comments and/or suggestions for improvement: I. Strengths And/Or Weaknesses: (Circle One) 1 2 3 4 5 Unsatisfactory Needs Improvement Adequate Good Excellent Comments and/or suggestions for improvement: (Continue on back ofform, if necessary) Council Member's Signature: Date: Council Member's Printed Name: A-5 Council Rules of Procedure Adopted March 14, 1994 As Amended Through June 13,2016 5 4O 4. iT V7 t 40, 'kit*" CITY CLERK EVALUATION City Clerk: Date: SCORING CRITERIA 1 Unacceptable: Has not performed well at all in this category. (Must provide example(s)). 2 Below Average: Needs improvement in this category. (Must provide example(s)). 3 Average: Has performed satisfactorily in this category. 4 Above Average: Has performed better than average in this category. 5 Excellent: Has had superior performance in this category. A. Has Good Attendance At Meetings And Work Sessions: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: B. Is Efficient In The Preparation Of Agendas For Meetings And Work Sessions: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: C. Is Responsive To Concerns And Answers Questions Promptly: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: D. Conducts Parliamentarian Skills When Asked: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: A-6 Council Rules of Procedure Adopted March 14,1994 As Amended Through June 13,2016 6 `JAI w 41.0 41.140 E. Able To Anticipate Problems And Is Effective In Preventive Actions: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: F. Coordinates And Administers City Elections,Absentee Voting,Worker Training,And Canvass Boards Efficiently: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: G. Keeps The Public And City Council Informed Of Related Matters: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: H. Deals Tactfully,Courteously,And Efficiently With The Public: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: I. Engages In Activities To Promote Own Professional Growth And Development: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: A-7 Council Rules of Procedure Adopted March 14,1994 As Amended Through June 13,2016 7 au 40110 °4► • J. Judgments,Actions And Decisions Are Sound: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: K. What Degree Of Confidence Do You Have In The City Clerk From All Aspects Of Their Performance And Relationship To You As A City Council Member? (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: L. Overall Rating Of The City Clerk Department As A Whole: (Circle One) 1 2 3 4 5 Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: City Clerk Strengths Or Weaknesses: Comments: Council Member's Signature: Date: Council Member's Printed Name: Revised:01/01/2010 A-8 Council Rules of Procedure Adopted March 14, 1994 As Amended Through June 13,2016 8 40, 'a'fc4t. 400 v CITY ATTORNEY EVALUATION City Attorney: Firm: Date: SCORING CRITERIA DK Don't Know: Have not made any personal observations in this category. (Not included in tally.) 1 Unacceptable: Has not performed well at all in this category. (Must provide example(s)). 2 Below Average: Needs improvement in this category. (Must provide example(s)). 3 Average: Has performed satisfactorily in this category. 4 Above Average: Has performed better than average in this category. 5 Excellent: Has had superior performance in this category. A. Firm Works Well As Part Of The Executive Team: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: B. Tempers And Balances Legal Approaches And Restrictions With Reality And Service Needs: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: C. Provides Solutions And Alternatives To Legal Problems And Issues: (Circle One) DK 1 2 3 4 5 r Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: D. Responsive To Direct Requests From Council: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: A-9 Council Rules of Procedure Adopted March 14,1994 As Amended Through June 13,2016 9 +Q y 4 V; O °Ls�� E. Provides Answers To Questions In A Timely Fashion And In An Understandable Manner: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: F. Keeps Abreast Of Changes Occurring In The Various Facets Of Municipal Law: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: G. Keeps The City Advised Of Developments In Municipal Law And Actions In Other Communities And Jurisdictions That May Have An Impact On The City's Activities: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: H. Maintains A Good System Of Reporting The Activities Of The Legal Department,Consistent With Maintaining The Attorney-Client Privilege: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: I. Attends Meetings As Required: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: A-10 Council Rules of Procedure Adopted March 14,1994 As Amended Through June 13,2016 10 c4 J 'q .b 4(4L.. J. Is Well Prepared And Knowledgeable About Council Agenda Items For Which Attorney Review Was Requested: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: K. Is Adept At Cost Control: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: L. Anticipates Legal Questions: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: M. Council Is Confident With Attorney's Advice: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: N. Is Effective In Advising Whether Or Not Litigation Is Excessive,Unnecessary,or Successful: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: A-11 Council Rules of Procedure Adopted March 14,1994 As Amended Through June 13,2016 11 ,/. O. Written Communication Skills: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: P. Public Speaking Skills: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: Q. Effectively Responds To Concerns Expressed By Council In The Most Recent Evaluation: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: R. City Attorney Carries out The Overall Wishes Of The Council: (Circle One) DK 1 2 3 4 5 Don't Know Unacceptable Below Average Average Above Average Excellent Comments and/or suggestions for improvement: Specific Examples Of Strengths And Weaknesses: A-12 Council Rules of Procedure Adopted March 14,1994 As Amended Through June 13,2016 12 +of 1y" O I[AIK� Comments: Council Member's Signature: Date: Council Member's Printed Name: Revised:01/01/2010 A-13 Council Rules of Procedure Adopted March 14,1994 As Amended Through June 13,2016 13 Chapter 2.05. - Records13' Footnotes: ---(3)--- See AS 40.21.010 et seq. for state provisions as to public records and, specifically, records management for records of political subdivisions. 2.05.010.-Open records. Except as provided by § 2.05.030 of this code, or by other provision of municipal, state or federal law, the books, records, papers, files, accounts, writings and transactions of the city are open to inspection by the public under reasonable rules during regular office hours. The city recognizes the competing interest of personal privacy and the right of the public to have access to information concerning the conduct of the people's business. (Ord. 599, 1988) 2.05.015.-Access and inspection of records. (a) Public records may be inspected at the city office where the records are kept during the regular office hours of that particular office. All city officers and employees shall,consistent with the orderly conduct of city business, make a good faith and diligent effort to respond to requests for inspection of records made pursuant to this code. (b) 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 city and shall be set by city council 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. (c) If the production of records for one requester or agent of a requester in a calendar month exceeds five person-hours, the city 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 city may require payment in advance of the search. (d) The city may reduce or waive a fee if the city determines 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 city may waive a fee of$5.00 or less if the fee is less than the cost to the city to arrange for payment. (Ord. 599, 1988;Ord. 642 § 1, 1991) Page 1 507486\1002\00544020 14 2.05.020. - Certified copies. The city clerk shall give, on request and payment of costs, a certified copy of any public record required to be disclosed under this code. A fee may be charged for certified copies, reflective of the actual costs involved in providing the certification, to be set by city council resolution. (Ord. 599, 1988; Ord. 642 § 2, 1991) 2.05.025. - Compilation or creation of records. Nothing in this code shall require the city to create records, compile, summarize, outline or in other ways create information from existing public records. In those instances where the city official who is the custodian of the record determines that the city has the requisite resources to compile or create records to comply with a request for information, the city may charge the requestor with the costs of such compilation or summary, which costs shall include the salary and benefits and overhead charges for the city employees who accomplished the work. (Ord. 599, 1988) 2.05.027. - Personal and proprietary records available for public disclosure. (a) If the city official who is the 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, he may attempt to notify any party who is the subject of the record or may be concerned with its pending release. Failure to notify shall not be grounds for action against the city or its employees. (b) If an objection to release of the record is filed, the city shall delay release of the record for five working days in order to provide time for the objecting party to seek appropriate restrictions on release of any portions of the record. (Ord. 642 § 3, 1991) 2.05.030.-Exemptions for particular records. • (a) This chapter shall not be construed to require disclosure of the following records or information which,by law, are 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 city with respect to any person for whom treatment or services were provided; (4) Records required to be kept confidential by a federal law or regulation or by state law; Page 2 507486\1002\00544020 15 (5) Records required to be kept confidential under 20 U.S.C. 1232g 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 city or any public utility pertaining to any client, customer, tenant, operator, user 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 city with the legitimate expectation of privacy in conjunction with licenses,permits or other municipal 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 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 or other municipal 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: Page 3 507486\1002\00544020 16 (1) City personnel records, including employment applications and examination materials, payroll and medical records which reveal the 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 city officials appointed by the city council; b. The names and position titles of all city employees; c. The position held by a city employee; d. Prior positions held by a city employee; e. Whether a city employee is in a collective bargaining unit; f. The dates of appointment and separation of a city employee; and g. The compensation authorized for a city employee. A city 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 between any agency and the city attorney which contain legal questions concerning potential, pending or actual litigation. This subsection does not protect from disclosure documents that were public records prior to the commencement of the litigation, and public records that are otherwise subject to disclosure may not be protected from disclosure by mere submission to the attorney. Any documents marked "confidential" which are submitted to the agency from the municipal attorney's office shall only be produced if the city attorney so authorizes. 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 city and their attorneys and agents regarding possible and pending claims against the city. (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. (Ord. 599, § 1(part), 1988; Ord. 610, 1988; Ord. 642 § 4, 1991; Ord. 651, 1991) Page 4 507486\1002\00544020 17 2.05.032.-Filing of exempt records. City records classified as exempt from public disclosure under section 2.05.030 shall be maintained in files providing a physical separation from general city records subject to public review. (Ord. 642 § 5, 1991) 2.05.035.-Denial of request; appeal. (a) If the city official who is the custodian of a record considers the information requested to be privileged or confidential pursuant to applicable federal, state or city law, within ten working days of receiving the request he shall prepare and provide the party requesting the information a written statement setting forth the following information: (1) Date; (2) Item of information requested; (3) The specific provision of applicable state, federal or city law exempting the requested information from disclosure; (4) The title and signature of the person withholding the information; and (5) The right of the requester to appeal the decision pursuant to subsection(b)herein. (b) In the event a party is denied access to requested information under the provisions of subsection(a)of this section,he may submit a written appeal to the city manager. Within ten working days of receiving the appeal, the city manager shall issue a written response to the requester, either granting or denying the appeal and notifying the requester of his right to appeal the decision to the city council at the next regularly scheduled meeting occurring at least 15 days following the date of the appeal,which shall be the fmal and binding authority. (Ord. 599, § 1(part), 1988; Ord. 642 § 6, 1991) 2.05.037. -Notice regarding personal information. (a) When the city requests personal information that may be included in a public record directly from the person who is the subject of the information,the city shall give the person a written notice at the time of the request that states: (1) The name and address of the city department; (2) The citation of the statute or regulation that authorizes the city to request the information; (3) A statement indicating whether the person is required to supply the information; (4) The consequences to the person, if any, of not providing all or part of the requested information; (5) A statement of the city's anticipated uses of the information, including the city's internal uses of the information and disclosure of the information to other city departments; Page 5 507486\1002\00544020 18 (6) The fact that the information may be subject to inspection and copying under Seward City Code Chapter 2.05; and (7) A statement summarizing how a person may challenge under section 2.05.038 the accuracy or completeness of personal information maintained by the city. (b) This section does not apply to a request for information on a person if: (1) The request is made by a police officer; (2) The person is a city employee; (3) The information is related to litigation; (4) The information is being collected by the city when investigating a possible violation of law; or (5) The information is exempt from inspection and copying under section 2.05.030. (Ord. 642 § 7, 1991) 2.05.038.-Challenging accuracy of personal information. (a) A person who is the subject of personal information that is maintained by the city and not exempt from public disclosure under section 2.05.030 may challenge the accuracy or completeness of the personal information. (b) To challenge the accuracy or completeness of personal information under subsection (a) of this section,the person must file with the city a written request that the personal information be changed. The request must provide: (1) A description of the challenged personal information; (2) The changes necessary to make the personal information accurate or complete; and (3) The person's name and the address where the city may contact the person. (c) Within 30 days after receiving a written request made under subsection (b) of this section, the city may request verification of the disputed personal information from the person who made the request. (d) Within 30 days after receiving the written request under subsection(b) of this section or the verification under subsection(c)of this section,the city shall review the request and: (1) Change the personal information according to the request and notify the person in writing of the change; or (2) Deny the request and notify the person in writing of the reasons for the decision and the name,title, and business address of the person who denied the request. (e) If a request is denied under subsection(d) of this section, the person may provide to the city a concise written statement that states the person's reasons for disagreeing with the decision. The city shall maintain in its records the request made under subsection (b) of this section and the statement provided by the person under this subsection. On all of the city's records that contain the disputed information, the city shall clearly note which portions of the Page 6 507486\1002\00544020 19 records are disputed. If the record is in electronic form, the city may note the dispute in one field of the electronic form and maintain the other information about the dispute in paper form. (1) This section does not apply to criminal intelligence or criminal investigative records, city personnel or retirement system records, records of applicants for employment with the city or information in documents recorded under AS 40.17. (Ord. 642 § 8, 1991) 2.05.040.- Records retention and disposal schedule. A general government records retention and disposal schedule, meeting all requirements set by state and federal law, shall be established by resolution of the council and shall be administered by the city clerk. Page 7 507486\1002\00544020 20 Municipality of Anchorage v.Anchorage Daily News, 794 P.2d 584(1990) 18 Media L. Rep. 1020 the municipality, it was possible for document 794 P.2d 584 request cases repeatedly to evade review by Supreme Court of Alaska. application of the mootness doctrine, and the questions presented were of considerable public MUNICIPALITY OF ANCHORAGE,Appellant and importance. Cross—Appellee, v. ANCHORAGE DAILY NEWS,Appellee and 3 Cases that cite this headnote Cross—Appellant. Nos.S-2647,S-3o76,S-3o33. May 4,199(1 121 Injunction b-Publishing,journalism,and bookselling Rehearing Denied June 5,1990. Permanent injunction issued in context of newspaper request for access to police Appeal was taken from decision of the Superior Court, recordings had no applicability to dispute Third Judicial District, Anchorage, Milton M. Souter, J., between the newspaper and municipality over which ordered release of employee performance report the request for an employee performance report issued by library advisory board to newspaper, ordered issued by a city library advisory board and a release of "Blue Ribbon Panel" fiscal report to "Blue Ribbon Panel"fiscal report. newspaper,and ordered that municipality be permitted to depose certain newspaper staff as to whether public's interest in being appraised of the fiscal report was greater Cases that cite this headnote than mayor's interest in keeping it confidential. The Supreme Court,Rabinowitz,J.,held that:(1)performance evaluation report on head librarian was subject to disclosure under Public Records Act; (2)report of"Blue Ribbon Panel"was subject to disclosure under the Public j31 Records Records Act; and (3) trial court abused its discretion in 4-Agencies or custodians affected refusing to grant newspaper's order quashing depositions due to government's failure to meet its burden of City library advisory board was a municipal establishing a prima facie case. entity and as such was subject to disclosure requirements of the Public Records Act. AS Affirmed in part,reversed in part. 44.62.310 et seq. 1 Cases that cite this headnote West Headnotes(16) 141 Records Appeal and Error (r-Agencies or custodians affected v:-=Want of Actual Controversy Alaska's public records statutes apply to Mootness doctrine was not applied to preclude municipalities,and codify the common-law right review of consolidated appeals involving a of the public of access to government records. newspaper's request for information from a AS 09.25.110,09.25.120,44.62.310 et seq. municipality, even though the information had already been released to the newspaper; the 1 Cases that cite this headnote issues were capable of repetition in that newspapers and other members of the public continued to make request for documents from WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 1 507486\1002\00544021 21 Municipality of Anchorage v.Anchorage Daily News, 794 P.2d 584(1990) 18 Media L. Rep. 1020 lsi Records in any way deal with the personal, intimate, or 4o-Matters Subject to Disclosure; Exemptions otherwise private life of the librarian. AS 09.25.110,09.25.120,44.62.310 et seq. Exceptions to the disclosure requirements of the Public Records Act are construed narrowly in 1 Cases that cite this headnote furtherance of the legislature's expressed bias in favor of broad public disclosure. AS 09.25.110, 09.25.120,44.62.310 et seq. 3 Cases that cite this headnote i9i Public Employment 4..-Duties Public officials are properly subject to public scrutiny in the performance of their duties. 161 Records 4r-Exemptions or prohibitions under other laws 1 Cases that cite this headnote Secrecy provisions of the Open Meetings Act do not authorize the nondisclosure of documents otherwise subject to disclosure under the Public Records Act. AS 09.25.110, 09.25.120, Doi Libel and Slander 44.62.310 et seq. 4-Discharge of duty to others or to public and 1 Cases that cite this headnote common interest in subject-matter Where a government agency releases a document in a good-faith effort to comply with public disclosure law, "actual malice" will not 171 Records exist,for purpose of a defamation action brought i.-Discretion and equitable considerations; against the government by a government official balancing interests allegedly defamed in the document. In the absence of an express exception to the disclosure laws, a balance must be struck Cases that cite this headnote between the public interest in disclosure,and the privacy and reputation interest of the affected individuals together with the government's interest in confidentiality. AS 09.25.110, iii Constitutional Law 09.25.120,44.62.310 et seq. i.-Other particular proceedings 3 Cases that cite this headnote Records 4.-Judicial enforcement in general Trial court's failure to notify head librarian of pending release of library advisory board 1st Records employee performance report on the librarian to 4t-Personal privacy considerations in general; allow the librarian to present argument to the personnel matters court as to which, if any, portions of the report were personal and unrelated to the performance Employee performance report on head librarian evaluation, for purposes of convincing the court by library advisory board was properly released to strike such portions of the report,was at most to newspaper upon request; the librarian was in harmless error and did not deny librarian due charge of public library facilities, 120 public process;there was nothing personal or unrelated employees, and $7.2 million annually in public to the librarian's employment in the report. AS monies, which are matters of legitimate public 44.62.310 et seq., 44.62.310(c)(2); U.S.C.A. concern,and the performance evaluation did not WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 2 507486\1002\00544021 22 Municipality of Anchorage v.Anchorage Daily News, 794 P.2d 584(1990) 18 Media L. Rep. 1020 Const.Amends.5, 14. particular public document,it is the government which bears the initial burden of presenting evidence justifying denial. 4 Cases that cite this headnote Cases that cite this headnote 1121 Records 8-Matters Subject to Disclosure; Exemptions list Records "Blue Ribbon Panel" fiscal report on city's I.-Judicial enforcement in general economic conditions was a public document subject to disclosure under the public disclosure Only if the government has satisfied its initial laws; the panel was supported in whole or in burden of presenting evidence justifying denial part by public money, was created to report to of release of a particular public document is the mayor and assembly, served a governmental government entitled to depose those whose function and dealt with matters of public factual knowledge the party seeking release of concern, and government's asserted interest in the document will rely on in making a case for keeping the records confidential was de disclosure. minimus at best. AS 09.25.110, 09.25.120, 44.62.310 et seq. Cases that cite this headnote Cases that cite this headnote 1161 Records X131 Records =Judicial enforcement in general 4-Internal memoranda or letters; executive privilege District court abused its discretion in refusing to grant newspaper's motion for an order quashing Even if an executive privilege applicable to municipality's depositions of newspaper staff municipal executives exists, mayor could not, concerning public interest in being apprised of under doctrine of executive privilege, preclude "Blue Ribbon Panel"fiscal report the newspaper releasing fiscal report of Blue Ribbon Panel on was seeking to have the municipality release, city's economic conditions to newspaper, even where municipality failed to meet its burden of though the panel consisted of executive establishing a prima facie case for its denial of appointees;the documents were of an essentially release of the report. Rules Civ.Proc.,Rules 26, public nature, did not concern the process of 30. confidential internal decision making, all of the panel meetings leading up to the report were 1 Cases that cite this headnote open to the public,and panel was to make a final report not only to the mayor, but also to the municipal assembly. Cases that cite this headnote Attorneys and Law Firms *585 Richard D. Kibby, Mun. Atty., Kevin Finnigan, Asst. Mun. Atty., Anchorage, for appellant and 1141 Records cross-appellee. 6-Evidence and burden of proof D. John McKay, Middleton, Timme & McKay, When the government seeks to deny access to a Anchorage,for appellee and cross-appellant. ©2016 Thomson Reuters. No claim to original U.S. Government Works. 3 507486\1002\00544021 23 Municipality of Anchorage v.Anchorage Daily News, 794 P.2d 584 (1990) 18 Media L. Rep. 1020 *586 Before MATTHEWS, C.J., and RABINOWITZ, Department, the Prosecutor's Office, and the Mayor's BURKE,COMPTON and MOORE,JJ. Office.The Daily News then filed a complaint in superior court seeking release of the tape and other injunctive and declaratory relief. The tape was released and, after a hearing on the Daily News' requests for permanent injunctive and declaratory relief, summary judgment was OPINION entered in favor of the Daily News on terms stipulated by the parties. The final judgment, including the judgment's provisions for injunctive relief relevant to the two RABINOWITZ,Justice. document release appeals now before this court, reads in relevant part as follows: IT IS HEREBY ORDERED, ADJUDGED AND I.INTRODUCTION. DECREED that: These consolidated appeals' involve various disputes relating to the Anchorage Daily News' requests for 1. As required by A.S. 09.25.110 et. seq., and AMC certain municipality documents. 3.90,all documents, files and records,including drafts, in the possession of the Municipality of Anchorage or Case No. S-2647 arose out of the municipality's refusal its agencies, shall be available for public inspection, to provide the Daily News with an employee performance subject only to narrowly construed exceptions based on report issued by the Anchorage Library Advisory Board. need, set forth in legally valid and controlling The superior court ordered that the Library Board release provisions of federal,state,or municipal law. this report pursuant to a pre-existing injunction obtained 2.Municipal employees and agents shall permit public by the Daily News in an earlier case involving the same access to municipal records under reasonable rules parties. The report was released, and a story published without the municipality requesting a stay of the superior during regular office hours, unless nondisclosure is specifically authorized by law. The obligation of the court's order. Municipality to provide public access to municipal Case No. 5-3033 arose out of the municipality's refusal records is not satisfied by providing the documents to release a"Blue Ribbon Panel"fiscal report to the Daily requested to a third party, including a public official, News. The superior court similarly ordered that this for release. Additionally, the Municipality may not document be released to the Daily News, with which delay or otherwise manipulate the release of public order the Municipality also has complied. records,the disclosure of which is required under A.S. 09.25.110 et. seq., or AMC 3.90.110 et. seq., for Finally, Case No. S-3076 also arose out of the parties' political or other extralegal purposes of the Municipal administration,public officials,or third parties. dispute over the Blue Ribbon Panel report. The municipality requested, and the superior court ordered, *587 3.Municipal defendants wrongfully withheld and that the municipality be permitted to depose certain Daily delayed release of the tape-recorded conversation of News staff as to whether the public's interest in being Anchorage Assembly member Don Smith at issue in apprised of the Blue Ribbon fiscal report was greater than this case, after access to that tape recording was the Mayor's interest in keeping it confidential. requested by the Anchorage Daily News in [sic] Thus, the municipality appeals the two release orders,' January 18, 1985. and the Daily News appeals the superior court's IT IS FURTHER ORDERED THAT: deposition order. 1.The Municipality of Anchorage shall distribute to all municipal employees a copy of standard instructions regarding access to municipal records, in the form IL FACTS AND PROCEEDINGS. stipulated to by the parties on or about April 3, 1985. In 1984, prior to the events directly relevant to these Distribution of that memorandum shall be appeals, Anchorage Assemblyman Don Smith pled nolo accomplished within two weeks following entry of contendere to a traffic violation. The Daily News sought Final Judgment. the release of a tape-recording of a conversation which took place between a police officer and Smith at the time ,,,, of the incident. The request was denied by the Police WEST ©2016 Thomson Reuters. No claim to original U.S. Government Works. 4 507486\1002\00544021 24 Municipality of Anchorage v.Anchorage Daily News, 794 P.2d 584(1990) 18 Media L. Rep. 1020 The municipality did not appeal from this judgment. The superior court held the municipality in contempt, and the components of this injunction were the basis for the report was released. superior court's rulings now before us in these consolidated appeals. The municipality appeals this order of the superior court on the grounds that (1) the mayor's executive privilege barred disclosure of the report, and (2) the Blue Ribbon Panel was an executive body, not an agency, so its work A.S-2647: The Revelle Case Facts and Proceedings. product is not subject to state or municipal public In November of 1987 the Anchorage Library Advisory disclosure laws. Board ("Board" or "Library Board") met to discuss the performance of Head Librarian Keith Revelle.Pursuant to municipal ordinance,this Board has the power to: C.S-3076: The Deposition Case Facts and Make recommendations to the Proceedings. administration and Assembly for In Case No. S-3076 the Daily News appeals a superior the adoption, change, repeal or court order denying its motion to quash depositions of alteration of the rules, regulations, certain Daily News employees. The municipality sought restrictions on library services, and these depositions in response to the Daily News' all other matters directly or complaint seeking release of the Blue Ribbon Panel Fiscal indirectly affecting the municipal Report. The depositions ordered have since taken place. library program. The Daily News argues that depositions of persons requesting public records should not be allowed or, in AMC 4.60.040(B). After its meeting, the Library Board the alternative, that the government's power to compel prepared and forwarded a confidential evaluation of such depositions should be strictly circumscribed to Revelle's performance to Mayor Fink. The Board and protect the rights of press and public to access to public Mayor Fink refused to release this report to the Daily documents. News, and the Daily News subsequently filed suit in superior court. The superior court ordered that the report be released. The document was released, and a story *588 III.DISCUSSION. based on it published without the municipality's requesting a stay. A.Mootness. The municipality appeals the superior court's order III The disputes which prompted these lawsuits are compelling release of the Library Board report on the technically moot. The Revelle evaluation and Blue grounds that: (1)the 1985 injunction did not require that Ribbon Panel report have already been released; Daily the report be released;(2)Revelle should have been given News personnel requesting the Blue Ribbon Panel report notice and an opportunity to be heard or joined as a party have already been deposed. In each case the losing party before the document was released; (3) the report was has submitted to an order by the superior court,the effects confidential,subject only to release to the Mayor;and(4) of which cannot be undone. Thus, none of the the release was not properly predicated on the 1985 consolidated appeals presents a live controversy. As a injunction. general rule, we"refrain from deciding questions `where the facts have rendered the legal issues moot.' "Hayes v. Charney, 693 P.2d 831, 834(Alaska 1985) (quoting Doe v. State, 487 P.2d 47, 53 (Alaska 1971)). However, we B.S-3033: The Blue Ribbon Panel Report Case Facts have held that mootness doctrine is a product of judicial and Proceedings. policy, not constitutional mandate,' and have recognized Case No. S-3033 arose out of the municipality's refusal on numerous occasions that certain technically moot to release to the Daily News a report issued by the questions merit review under the "public interest" mayor's Blue Ribbon Fiscal Policy Committee. This exception to the mootness doctrine.' This court recently committee was comprised of local citizens appointed by reiterated the criteria to be considered in determining Mayor Fink for the purpose of preparing a report on whether to review a moot question: Anchorage's economic condition. After a hearing, the superior court ordered the release of the committee's The public interest exception involves the consideration report.The municipality unsuccessfully moved for a stay, and ultimately failed to comply with the order. The of three main factors: 1)whether the disputed issues are ©2016 Thomson Reuters. No claim to original U.S. Government Works. 5 507486\1002\00544021 25 Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584(1990) 18 Media L. Rep. 1020 capable of repetition,2)whether the mootness doctrine, if applied, may repeatedly circumvent review of the issue and, 3) whether the issues presented are so important to the public interest as to justify overriding C.The Revelle Memorandum. the mootness doctrine. In this case the municipality seeks review of the superior Hayes,693 P.2d at 834(citations omitted). court's order requiring the Anchorage Library Advisory We conclude that the questions presented in these appeals Board to release to the Daily News a performance come within the public interest exception.First,the issues evaluation report pertaining to head librarian Keith are capable of repetition so long as newspapers and other Revelle. The superior court held that the Board was a members of the public continue to make requests for public entity acting in an official capacity and that the documents from the municipality. Indeed, a history of report it produced was a public record, subject to the ongoing document request disputes between the Alaska Public Records Act, AS 09.25.110 and .120. We municipality and the Daily News is reflected in the record affirm that ruling. before us. Second, it is possible for document request cases repeatedly to evade review by application of the 131 141 151 We agree with the superior court's conclusion that mootness doctrine, since time is of the essence in release the Library Board is a municipal entity and as such is cases and orders by the superior court will normally be subject to the disclosure requirements of the Public enforced prior to review by this court. Finally, the Records Act, supra, and the Open Meetings Act, AS questions presented are of considerable public 44.62.310 et seq. Alaska's public records statutes apply importance. Therefore, we decline to apply the mootness to municipalities,and codify the common law right of the doctrine to any of the issues in these consolidated appeals. public to access to government records: AS 09.25.110 provides: B. The 1985 Injunction. Inspection and copies of public records. Unless 121 As a preliminary matter, we must decide whether the specifically provided otherwise the books, records, superior court's 1985 permanent injunction has papers, files, accounts, writings and transactions of all continuing validity against the municipality.We conclude agencies and departments are public records and are that the superior court erred in applying the terms of the open to inspection by the public under reasonable rules 1985 injunction to the present disputes between the Daily during regular office hours. The public officer having News and the municipality. the custody of public records shall give on request and payment of costs a certified copy of the public record. As noted at the outset,the 1985 injunction was issued in (Emphases added.)AS 09.25.120 reads in relevant part: the context of a Daily News request for access to police recordings, circumstances wholly unrelated to those at Inspection and copying of public records. Every issue in the instant appeals. Yet injunctions must be person has a right to inspect a public writing or specific in their terms, and must describe in reasonable record in the state, including public writings and detail the conduct enjoined. See Civil Rule 65(d).' records in recorders' offices except (1) records of Therefore, the 1985 injunction could have continuing vital statistics and adoption proceedings which shall force, if at all, only in circumstances similar to those for be treated in the manner required by AS 18.50; (2) which it was drafted (i.e., to compel disclosure of police records pertaining to juveniles; (3) medical and recordings) and the superior court erred in holding it related public health records; (4)records required to applicable here. If the Daily *589 News now desires be kept confidential by a federal law or regulation or permanent injunctive relief, it should seek issuance of a by state law.Every public officer having the custody permanent injunction addressed to the specific problems of records not included in the exceptions shall permit of which it now complains. the inspection, and give on demand and on payment of the legal fees therefor a certified copy of the Essentially, the 1985 injunction commands the writing or record ... subject to reasonable rules and municipality, in language of a rather broad scope,' to regulations.... adhere to its pre-existing duties under state law.Although we hold that the terms of the 1985 injunction are not Exceptions to these disclosure requirements are enforceable against the municipality for purposes of these construed narrowly in furtherance of the legislature's appeals, we must nonetheless examine the validity of the expressed bias in favor of broad public access.' Such superior court's holdings under Alaska's public records exceptions include those embodied in federal and state law. law, and those adopted by "municipalities ... [where] V ©2016 Thomson Reuters. No claim to original U.S. Government Works. 6 507486\1002\00544021 26 Municipality of Anchorage v.Anchorage Daily News, 794 P.2d 584 (1990) 18 Media L. Rep. 1020 based on need." City of Kenai v. Kenai Peninsula property, against the interests of the public in having Newspapers, 642 P.2d 1316, 1323(Alaska 1982). the business of government carried on efficiently and *590 161 The municipality argues that state law creates an without undue interference.... express exception exempting the work product of executive sessions held pursuant to the Open Meetings In balancing the interests referred to above, the scale Act,AS 44.62.310 et seq., from the public records laws. must reflect the fundamental right of a citizen to have We have held that a government agency subject to the access to the public records as contrasted with the Open Meetings Act may, under AS 44.62.310(c)(2),meet incidental right of the agency to be free from in executive session to discuss matters tending to unreasonable interference. The citizen's predominant prejudice a person's reputation or character. City of interest may be expressed in terms of the burden of Kenai, 642 P.2d at 1326; Univ.of Alaska v. Geistauts, 666 proof which is applicable in this class of cases; the P.2d 424, 429 (Alaska 1983).' However, we have never burden is cast upon the agency to explain why the held that this statute, which provides for closed executive records sought should not be furnished. Ultimately, of sessions when subjects potentially prejudicial to course, it is for the courts to decide whether the reputation are discussed, establishes an exception to the explanation is reasonable and to weigh the benefits pro-disclosure requirements of the Public Records Act or according to the agency from non-disclosure against otherwise permits the suppression of documents produced the harm which may result to the public if such records at such sessions.In fact,we have implied the opposite. are not made available for inspection. Our decision in City of Kenai indicates that the secrecy MacEwan v. Holm, 226 Or. 27, 359 P.2d 413, 421-22 provisions of the Open Meetings Act have not been (1961) (En Banc) (citations omitted) (quoted in City of judicially incorporated into the Public Records Act. See Kenai, 642 P.2d at 1325). 642 P.2d at 1323-25. There we were asked to decide whether the City of Kenai properly denied a newspaper j8J As head librarian, Keith Revelle was in charge of reporter access to a meeting and records relating to city public library facilities, 120 public employees, and $7.2 manager applications.Id. at 1317. We concluded that the million annually in public monies. These activities are meetings could be held in executive session under the clearly matters of legitimate public concern. See City of "reputation"provision of the Open Meetings Act,but that Kenai, 642 P.2d at 1324 (qualifications of applicants for the records discussed at the closed meeting, including municipal offices are matters of legitimate public personnel job applications, were subject to disclosure concern). under the Public Records Act. Id. at 1322-26. In 191 1101 [Ill accordance with the principle that exceptions to the Balanced against the public's right to monitor Public Records Act are to be construed narrowly,and in Revelle's performance is Revelle's asserted privacy order to further the public's right to know what its interest in preventing the information in the report from government is doing,10 we reject the view that the secrecy being publicly disclosed. However, public officials are provisions of the Open Meetings Act authorize the properly subject to public scrutiny in the performance of non-disclosure of documents otherwise subject to their duties." Moreover, in the instant case the superior disclosure under the Public Records Act. court expressly found that the performance evaluation did not in any way deal with the personal, intimate, or 171 Having held that no express exception to the Public otherwise private life of Keith Revelle.This finding is not Records Act is applicable, we next review the superior clearly erroneous. Under these circumstances the balance court's order under our public records law. In the of competing interests falls on the side of the public's absence of an express exception to the disclosure laws, a interest in free access to public documents.'= Thus, the balance must be struck between the public interest in superior.court's decision compelling release of the report disclosure on the one hand, and the privacy and is affirmed." reputational interests of the affected individuals together with the government's interest in confidentiality, on the other. See City of Kenai, 642 P.2d at 1325. We have *592 D. The Blue Ribbon Panel Report. described this process of balancing as follows: 1 121 The municipality argues that the superior court erred In determining whether the records should be made in requiring it to disclose a Fiscal Policy Committee available for inspection in any particular instance, the report.The report was drafted by local citizens appointed court must balance the interest of the citizen in by the mayor for the sole purpose of preparing an analysis knowing what the servants of government are doing of Anchorage's economic condition. The meetings of the and the citizen's proprietary *591 interest in public panel were open to the public and press,as were materials ©2016 Thomson Reuters. No claim to original U.S. Government Works. 7 507486\1002\00544021 27 Municipality of Anchorage v.Anchorage Daily News, 794 P.2d 584(1990) 18 Media L. Rep. 1020 presented at these meetings. The panel's final report was ensure the availability to executive decision-makers of withheld from the Daily News, however. The candid advice.15 Even assuming an executive privilege municipality contends that(1)the Blue Ribbon Panel was applicable to municipal executives exists,16 the policies exempt from public disclosure laws because the Blue underpinning the qualified executive privilege are not Ribbon Panel was not a municipal agency; and(2)in the implicated at all on the record before us. This case alternative, a municipal executive privilege authorizes involves documents of an essentially public nature, and non-disclosure of the report.We affirm. does not concern the process of confidential internal decision-making. The uncontroverted evidence is that all The superior court correctly held that the Blue Ribbon of the committee meetings leading up to the report were Panel report was a public document subject to disclosure. open to the public, and that the Blue Ribbon Committee As we have already observed, under state law, records was to make a final report not only to the mayor,but also subject to public access include all "papers" and to the municipal assembly. The Fiscal Report was the "writings" of "all agencies and departments," AS product of a public process, and was intended for public 09.25.110 and .120, "[u]nless specifically provided dissemination. As the assembly is free to discuss and otherwise" by state or federal law." Exceptions are to be make public the content of the report, the mayor cannot construed narrowly in deference to the right of citizens to argue that his deliberations and ability to obtain candid know what their government is doing.See Doe, 721 P.2d advice will be impaired by disclosure. Under these at 622. circumstances, any claim for executive privilege must be viewed with skepticism.We conclude that,even assuming We affirm the superior court's conclusion that the Blue the applicability of an executive privilege to municipal Ribbon Fiscal Panel was a municipal agency subject to officers, such privilege would be unavailable on these the public records disclosure laws. This committee, facts, and thus the superior court's order compelling supported in whole or in part by public money, was release of the Blue Ribbon Panel Report is affirmed. created to report to the mayor and assembly on the financial status of the Anchorage area. The Committee served a governmental function and dealt with matters of public concern, and was a public agency or E.Depositions of Daily News Employees. instrumentality for purposes of the Public Records Act. The superior court issued an order permitting the municipality to depose certain Daily News employees, We find no specific exception to the policy of broad including a reporter, the publisher, and the editor, as a disclosure exempting the Panel's report from ordinary prerequisite to the government's release of the Blue disclosure requirements. Therefore the City of Kenai Ribbon Fiscal Report. The municipality's discovery was balancing test, see 642 P.2d at 1325, applies.. *593 purportedly for the purpose of determining whether,under Contrasted with the public's fundamental right of access our decision in Doe, 721 P.2d at 617, the municipality's to governmental records such as these, the government's interest in the confidentiality of the Report outweighed asserted interest in keeping the records confidential is de the public's interest in access to the document. By minimus at best. We conclude that the superior court did contrast, the Daily News suggests the depositions were not err in ordering those records released. noticed for purposes of delay or harassment. X131 The municipality further contends that even if the Blue 11411151 The municipality's reliance upon Doe is misplaced. Ribbon Panel report is subject to the public records When the government seeks to deny access to a particular disclosure laws, executive privilege permits the mayor to public document, it is the government who bears the withhold the report since the panel consisted of executive initial burden of presenting evidence justifying denial.See appointees. While we have recognized a doctrine of Doe, 721 P.2d at 626 (entity claiming privilege has initial executive privilege, applicable to state executives, see burden of presenting prima facie defense to release)."As Doe, 721 P.2d at 622-26, we have not heretofore the party requesting release *594 will not normally considered the applicability of the doctrine at the possess evidence that a document is not protected by municipal level. executive privilege, depositions of those seeking release will generally be of no use to the government in satisfying The doctrine of executive privilege recognizes that chief this burden.Only if this initial burden has been satisfied is executives sometimes have a qualified power to keep the government entitled to depose those whose factual confidential certain internal governmental knowledge the party seeking release will rely on in communications "so as to protect the deliberative and making a case for disclosure. In short, a governmental mental processes of decisionmakers." Doe, 721 P.2d at agency is not entitled to delay access through the use of 622-23 (footnote omitted). The doctrine is designed to depositions where it has presented no prima facie defense WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 8 507486\1002\00544021 28 Municipality of Anchorage v.Anchorage Daily News,794 P.2d 584(1990) 18 Media L. Rep. 1020 to release. discovery of admissible evidence." Civil Rule 26(b)(1).2" A protective order should have been granted the Daily 1161 In the case at bar,the superior court did not require the News pursuant to Civil Rule 26(c).'' municipality to make a prima facie case for its defense to the document release request, and we hold that it erred in refusing to quash or stay the depositions. The government made no initial showing at all as to why the document *595 IV.CONCLUSION. sought should not be subject to release.'" The superior court's orders compelling release of Keith Revelle's employment evaluation and the Blue Ribbon The Daily News timely moved in the superior court for an Panel report are AFFIRMED. The superior court's order order quashing the disputed depositions pursuant to Civil refusing to quash the disputed depositions is REVERSED. Rules 26 and 30. The superior court denied the motion. We hold that the superior court abused its discretion in this respect.'" Since the government failed to meet its burden of establishing a prima facie case, any evidence All Citations discovered in the deposition proceedings would be 794 P.2d 584, 18 Media L.Rep. 1020 inadmissable. The depositions at issue here thus failed to satisfy the most fundamental requirement for discovery, since they were not "reasonably calculated to lead to the Footnotes 1 The three cases discussed in this opinion were consolidated pursuant to Appellate Rule 204(g). 2 Other municipal officials named in the original action have not appealed. 3 See, e.g.,Etheredge v. Bradley, 502 P.2d 146, 153(Alaska 1972). 4 See, e.g.,Falke v. State, 717 P.2d 369, 371 (Alaska 1986)(addressing merits of a claim that candidate's name should have been on ballot although election had already been held); Kentopp v. Anchorage, 652 P.2d 453, 457-58 (Alaska 1982) (addressing merits of malapportionment claim even though reapportionment plan had already been implemented)and cases cited therein at 457 n. 3. 5 Civil Rule 65(d)provides: (d) Form and Scope of Injunction or Restraining Order. Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained(;] and is binding only upon the parties to the action,their officers, agents,servants, employees, and attorneys,and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. 6 Because we hold the injunction inapplicable to the instant controversies, we need not reach the issue of its putative overbreadth. In any event, the municipality has waived any right it might have had to challenge the injunction as overbroad.The municipality did not appeal the 1985 injunction when it was issued; nor did it then complain, as it now does, that the injunction was overbroad or ambiguous. See, e.g., Williams v. Alyeska Pipeline Service Co., 650 P.2d 343, 351 (Alaska 1982) (arguments not presented to the trial court will not be addressed on appeal). Moreover, we note that the terms of the injunction were consented to by the municipality. 7 See City of Kenai v. Kenai Peninsula Newspapers, 642 P.2d 1316, 1320-21 (Alaska 1982). 8 In City of Kenai,642 P.2d at 1323,we observed: In striking a proper balance the custodians of the records in the first instance, and the court in the next, should bear in mind that the legislature has expressed a bias in favor of public disclosure. Doubtful cases should be resolved by permitting public inspection. (citing AS 44.62.312(a), .110, and .120). See also Doe v. Alaska Superior Court, Third Judicial District, 721 P.2d 617, 622(Alaska 1986). 2016 Thomson Reuters. No claim to original U.S. Government Works. 9 507486\1002\00544021 29 Municipality of Anchorage v.Anchorage Daily News,794 P.2d 584(1990) 18 Media L. Rep. 1020 9 Alaska Statute 44.62.310 provides, in relevant part: Government meetings public. (a) All meetings of a legislative body, of a board of regents, or of an administrative body, board, commission, committee, subcommittee, authority, council, agency, or other organization, including subordinate units of the above groups, of the state or any of its political subdivisions, including but not limited to municipalities, boroughs, school boards, and all other boards, agencies, assemblies, councils, departments, divisions, bureaus, commissions or organizations,advisory or otherwise,of the state or local government supported in whole or in part by public money or authorized to spend public money, are open to the public except as otherwise provided by this section.... (b) If excepted subjects are to be discussed at a meeting, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that come within the exceptions contained in (c)of this section shall be determined by a majority vote of the body.... (c)The following excepted subjects may be discussed in an executive session. (2)subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion; (3)matters which by law, municipal charter,or ordinance are required to be confidential. (e) Reasonable public notice shall be given for all meetings required to be open under this section. The notice must include the date, time and place of the meeting, and if the meeting is by teleconference the location of any teleconferencing facilities that will be used. (f)Action taken contrary to this section is void. to See Doe, 721 P.2d at 622. 11 In City of Kenai,we emphasized that The applicants' individual privacy interests in having their names and applications not revealed are also not of an order sufficient to overcome the public's interest. The applicants are seeking high government positions. "Public officials must recognize their official capacities often expose their private lives to public scrutiny." Id. at 1324(footnotes omitted and emphasis added). 12 See University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990). In that case the Supreme Court of the United States considered a claim by the University that it enjoyed a special privilege, premised upon the alleged confidentiality of faculty peer review materials, requiring a judicial finding of particularized necessity for access to peer review documents prerequisite to release of such documents to a Title VII plaintiff. The Court rejected this contention, holding that peer review materials enjoy no special privilege against discovery. Id. 110 S.Ct.at 581-586. 13 The municipality also argues that (1) Revelle should have been joined under Civil Rule 19; (2) compelling the municipality's release of the Library Board report could lead to municipal liability for defamation; and (3)the superior court's release order was flawed because Revelle was not provided notice of the potential release of the evaluation and an opportunity to object to release of personal matters possibly contained therein. Our review of the record persuades us that these arguments are without merit. Civil Rule 19(a)provides in part: A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if ... (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may(i)as a practical matter impair or impede his ability to protect that interest.... We have recognized that persons whose job qualifications and performance are to be discussed have an interest in confidentiality. In City of Kenai, for instance, we held that reputational interests should be balanced against those relating to public access before deciding whether to order the release of a document. See 642 P.2d at 1323. However, while Revelle might have had an "interest"in this case,joinder would not have enabled him to protect that interest. Performance evaluations of government employees who exercise discretion in their duties are subject to release as a matter of law. Revelle could have done no more to prevent release of the job related portions of the report had he appeared in this case than could the municipality. He was not an indispensable party. Thus, the superior court did not err in refusing to join Revelle under Civil Rule 19. The municipality also raises the concern that if it is ordered to release documents which might serve to impair a person's reputation, it could possibly be held liable in a defamation action. Putting aside any question of privilege, in order to recover damages for defamation, "a plaintiff[must] prove that a defamatory statement concerning a matter of public interest was published with 'actual malice.' " Doe v. Alaska Superior Court, Third Judicial District, 721 P.2d :vESTLAV ©2016 Thomson Reuters. No claim to original U.S. Government Works. 10 507486\1002\00544021 30 Municipality of Anchorage v.Anchorage Daily News,794 P.2d 584(1990) 18 Media L. Rep. 1020 617, 627 (Alaska 1986) (citations omitted). Where a government agency releases a document in a good faith effort to comply with public disclosure law, "actual malice"will not exist. Finally, while we can agree that it may have been desirable for Keith Revelle to have been given notice of the pending release and an opportunity to present argument to the court as to which, if any, portions of the report were personal and unrelated to the performance evaluation for purposes of convincing the court to strike such portions of the report, see, e.g., AS 44.62.310(c)(2), we cannot conclude on this record that failure to notify Revelle of the pending release constituted a reversible denial of due process of law. Here we note that aside from not giving Revelle notice of the meeting,the municipality totally failed to give the general notice called for by AS 44.62.310.We have reviewed the report in toto and agree with the superior court's ruling that it contained nothing personal or unrelated to Keith Revelle's employment. The superior court could have, on its own motion, struck any scandalous matter from the report prior to ordering its release.The error, if any,was harmless. 14 Anchorage municipal law further provides that, subject to federal and state law, all"public records[are]open to public inspection." AMC 3.90.030. The term "public record" is not defined. However, a non-exhaustive list is provided, accompanied by the following statement of policy: The foregoing enumeration of information available for public inspection is not designed to limit the categories of records and information that shall be made available to the public, nor is it designed to require disclosure of items specifically exempted.... The policy of providing public access to public information shall be broadly and liberally construed, and where there is no express policy governing the release of a particular report or other information, the information shall be released providing its release does not conflict with the privacy rights of ordinary citizens. AMC 3.90.030(emphasis added). Municipal law also requires the municipality to give"full disclosure of all records in the possession or control of the municipality,"except those specifically exempted.AMC 3.90.010(emphasis added). 15 The Supreme Court of the United States has emphasized that the primary impetus for the qualified privilege is the need to protect The public interest in candid, objective, and even blunt or harsh opinions in presidential decision making. A president and those who assist him must be free to explore alternatives ... and to do so in a way many would be unwilling to express except privately. United States v. Nixon,418 U.S.683, 708,94 S.Ct. 3090,3107-08,41 L.Ed.2d 1039, 1064(1974). 16 We express no opinion with respect to this issue. 17 As we said in Doe: [Any] claim of privilege must satisfy strict procedural requirements. In particular, the government must specifically identify and describe the documents sought to be protected and explain why they fall within the scope of the executive privilege. Since a court usually must rely on an affidavit of the responsible department head for information necessary to determine whether to recognize the privilege, the affidavit should be based on personal examination of the documents by the affiant official. Id. The party seeking discovery then must make a sufficient showing that the need for production outweighs the interest in confidentiality. United States v. Nixon, 418 U.S. at 713-14, 94 S.Ct. at 3110-11, 41 L.Ed.2d at 1067; Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 730(D.C.Cir.1974). Upon such a showing, the trial court should review the documents in camera before deciding whether to order production. In the absence of such a showing, a claim of privilege should be honored without requiring an in camera inspection. Senate Select Committee, 498 F.2d at 730. 18 The Daily News also argues in this appeal that the press is entitled to a qualified immunity, based on the first amendment, from certain inquiries into the editorial process. We have not heretofore addressed the issue of a "pressman's privilege,"and we decline to do so in this case.The argument was not presented to the superior court and is deemed waived. See, e.g., Williams v. Alyeska Pipeline Service Co., 650 P.2d 343, 351 (Alaska 1982)(arguments not presented to the trial court will not be addressed on appeal). Our holding that it is the government, not the party seeking access, which bears the initial burden of demonstrating the need to withhold public records is a sufficient basis for reversing the superior court's order refusing to quash the depositions.We believe that for the time being the civil rules applicable to discovery constitute a sufficient device for controlling harassment of the type alleged here, and decline to reach the broader constitutional issue. 19 Courts typically review discovery orders under the abuse of discretion standard. See, e.g., Voegeli v. Lewis, 568 F.2d 89,96(8th Cir.1977). 20 Civil Rule 26(b)(1)provides: (b)Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: .'rESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 11 507486\1002\00544021 31 Municipality of Anchorage v.Anchorage Daily News,794 P.2d 584(1990) 18 Media L. Rep. 1020 (i) In General. Parties may obtain discovery regarding any matter, not privileged which is relevant to the subject matter involved in the pending action,whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought appears reasonably calculated to lead to the discovery of admissible evidence. 21 Civil Rule 26(c)provides: (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown,the court in which the action is pending or alternatively,on matters relating to a deposition,the court in the judicial district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment,oppression, or undue burden or expense, including one or more of the following: (1)that the discovery not be had; (2)that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3)that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4)that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5)that discovery be conducted with no one present except persons designated by the court; (6)that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development or commercial information not be disclosed or be disclosed only by a designated way;(8)that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. End of Document ©2016 Thomson Reuters.No claim to original U.S.Government Works. ©2016 Thomson Reuters. No claim to original U.S. Government Works. 12 507486\1002\00544021 32 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) Connor,J.,filed separate opinion dissenting in part. 642 P.2d 1316 Supreme Court of Alaska. CITY OF KENAI,Charles A.Brown,Acting City Manager,Sue C.Peters,City Clerk,and all current West Headnotes(4) members of the council of the City of Kenai, Vmcent O'Reilly,Edward Ambarian,Ronald A. Malston,Betty Glick,Phillip Aber,Charles Bailie 1'I Records and Michael Seaman,Appellants, 4-Access to records or files in general v. KENAI PENINSULA NEWSPAPERS,INC., Records in possession of municipalities are Appellee. available for public inspection, subject to The MUNICIPALITY OF ANCHORAGE,George exceptions based on need. AS 09.25.110, M.Sullivan,Mayor,Ruby Smith,MunicipalClerk, 09.25.120. Jane Angvik,Paul Baer,Fred Chiei,Ben Marsh, Carol Maser,RickMystrom,Gerry O'Connor,Dave Rose,Lydia Selkregg,Don Smith,and Dave 4 Cases that cite this headnote Walsh,all currentmembers of the Anchorage Municipal Assembly,Appellants, v. ANCHORAGE DAILY NEWS,INC.,Appellee. 121 Records Nos.4954,5433. 4-Matters Subject to Disclosure; Exemptions March 26,1982. With the exception of those who withdrew their applications rather than have them disclosed, employment applications for positions of city Appeals were taken from decisions of the Superior Court, manager and police chief were subject to Third Judicial District, Kenai and Anchorage, James A. disclosure pursuant to public records disclosure Hanson and Karl S. Johnstone, JJ., which, inter alia, statute.AS 09.25.110,09.25.120. ordered the municipalities involved to disclose information concerning the applicants for positions of city manager and police chief. After consolidation, the 10 Cases that cite this headnote Supreme Court, Matthews, J., held that: (1) records in possession of municipalities are available for public inspection, subject to exceptions based on need; (2) with the exception of those who withdrew their applications rather than have them disclosed,employment applications X31 Municipal Corporations for positions of city manager and police chief were 4-Effect of partial invalidity subject to disclosure pursuant to public records Municipal Corporations disclosure statute;(3)to extent that city's public records 4.-Concurrent and Conflicting Exercise of ordinance prohibited disclosure of applications of those Power by State and Municipality seeking position of police chief, it was in irreconcilable conflict with public records disclosure statute and could To extent that city's public records ordinance not be accorded substantive effect;however,remainder of prohibited disclosure of applications of those the ordinance was valid; and (4) city council was seeking position of police chief, it was in authorized by public meetings law to meet in executive irreconcilable conflict with public records session while discussing personal characteristics of the disclosure statute and could not be accorded applicants for city manager position. substantive effect; however, remainder of the ordinance was valid since those provisions of Order in Anchorage case affirmed; order in Kenai case the ordinance were plainly meant to be severable affirmed in part and reversed in part. and since existing state law was neither so detailed nor comprehensive as to permit an inference that the legislature intends to occupy ©2016 Thomson Reuters. No claim to original U.S. Government Works. 1 507486\1002\00544019 33 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) the field to the exclusion of municipalities. AS also raises issues not present in the other, and these will 09.25.110,09.25.120. be separately discussed. 11 Cases that cite this headnote CITY OF KENAI During June of 1979, the City of Kenai began soliciting 141 Municipal Corporations applications for city manager. Subsequently, the City irmRules of procedure and conduct of business Council met, without notice to the public and without keeping minutes, to review applications and interview City council was authorized by public meetings applicants. Max Swearingen, the publisher of the law to meet in executive session while Peninsula Clarion, a daily publication of Kenai Peninsula discussing personal characteristics of the Newspapers,Inc.,asked the City to release a list of names applicants for city manager position. AS and a summary of credentials of the applicants. This 44.62.310(c)(2). request was considered by the City Council on August 2, 1979, and rejected. In a letter written to Swearingen, the mayor voiced a concern that such disclosures would 7 Cases that cite this headnote jeopardize the applicants' personal privacy, deter future applications from qualified people concerned about public exposure,and compromise the council's moral obligation to respect the privacy interests of individual applicants. Attorneys and Law Firms Kenai Peninsula Newspapers filed suit to require the City to allow inspection of the applications and to enjoin the *1317 Richard W. Garnett, III, Garnett, Klinkner & City Council from further review and action upon the applications except at a public meeting. The superior Bendell,Anchorage,for appellant,City of Kenai. court issued a temporary restraining order enjoining Steven H. Morrissett, Julie A. Garfield, Asst. Municipal "further deliberations toward the appointment of a City Attys., Theodore D. Berns, Municipal Atty., Anchorage, Manager for the City of Kenai from which the public is for appellants,Municipality of Anchorage. excluded...." After briefing and a second hearing, the superior court entered a decision which concluded that the C. R. Baldwin, Kenai, for appellee, Kenai Peninsula applications were public records and that the Newspapers. deliberations of the city council concerning appointment of a city manager must be held in public meetings. The A. Robert Hahn, Jr., Kevin F. McCoy, Hahn, Jewell & court thereupon ordered the city to permit the inspection Stanfill,Anchorage,for appellee,Anchorage Daily News. and copying of the applications and to refrain from any Before RABINOWITZ, C. J., CONNOR and closed deliberations concerning the selection of the new MATTHEWS, JJ., and VAN HOOMISSEN and city manager. TAYLOR,Superior Court Judges.' The superior court stayed,pending appeal,that portion of its order requiring the immediate release of the applications for employment. The parties then stipulated that the order should be considered a final judgment and OPINION that the city would"deliver over to the Plaintiff copies of all resumes and applications of all applicants for city manager who do not choose to withdraw their application MATTHEWS,Justice. upon being notified of the (city's) agreement to release the same." The agreed upon release was made without These consolidated cases have as their common issue the prejudice to the city's right to appeal the order requiring question whether our public records disclosure statute, it. Ten of the thirty-two applicants for the position AS 09.25.110-.120, applies to municipalities. In both withdrew their applications upon learning of the cases the superior court ruled that the statute does apply possibility of disclosure. Kenai Peninsula Newspapers and,for the reasons expressed below,we agree.Each case subsequently moved for disclosure of the names and WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 2 507486\1002\00544019 34 City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316(1982) information concerning the withdrawn applicants. This judgment so that an appeal could be taken to this court.Of motion was denied. the 89 original applicants, 8 withdrew their names. An additional 19 could not be reached within the time frame prescribed by the stipulation and their names were also considered to have been withdrawn. MUNICIPALITY OF ANCHORAGE In February of 1980, the Municipality of Anchorage began soliciting applications for *1318 police chief. The APPLICATION OF THE PUBLIC RECORDS nationwide search was conducted through written DISCLOSURE STATUTE TO MUNICIPALITIES advertisements which promised that applications would be held in confidence. SII The first question is whether the provisions of AS 09.25.110' and AS 09.25.120' are applicable to From June 1, 1980,through July 8, 1980,Don G.Hunter, municipalities. a reporter for the Anchorage Daily News,sought access to the names and qualifications of the applicants. The *1319 A.The parties'arguments focus on the terms of the Municipality refused to honor these requests on the statute without regard to its historical context. That grounds that disclosure was prohibited by municipal historical context is illuminating. ordinance,and because confidentiality had been promised to all applicants.The Anchorage Daily News filed suit on At common law, every interested person was entitled to July 9, 1980 alleging that the applications and resumes the inspection of public records, including those of were public documents subject to disclosure and municipal corporations. Mushet v. Department of Public requesting injunctive relief and a temporary restraining Service of City of Los Angeles, 35 Cal.App. 630, 170 P. order restraining the Municipality from appointing a 653 (1917); Clement v. Graham, 78 Vt. 290, 63 A. 146, police chief until a hearing on the merits.Mayor Sullivan 153 (1906); State ex rel.Wellford v. Williams, 110 Tenn. appointed a new police chief the next day before the 549, 75 S.W. 948 (1903); State ex rel. Colescott v. King, hearing on the temporary restraining order. After the 154 Ind.62,57 N.E.535(1900). hearing,the court ordered the Municipality to refrain from any action confirming the appointment until a hearing on The history of ss .110 and .120 demonstrates that the the merits. The appointee subsequently declined the coverage of the common law has consistently been appointment after disclosures reflecting adversely on his accepted by the legislators of this state. The operative qualifications were made. language of s .120 was first enacted by Congress for the District of Alaska as section 1039 of the Act of June 6, The Daily News then learned that Mayor Sullivan had 1900,31 Stat.321.It read: appointed a review committee to assist in evaluating the Every person has a right to inspect eighty-nine applications received by the Municipality. any public writing or record in said The review committee was comprised of local citizens district, and every public officer and several municipal employees. The Daily News having the custody thereof is bound amended its complaint to allege that the selection process to permit such inspection, and to was in violation of Alaska's open meeting law, AS give on demand and on payment of 44.62.310-.312.Following a hearing,the court entered an the legal fees therefor, a certified order for preliminary injunction, supported by findings of copy of such writing or record,and fact and conclusions of law,requiring the Municipality to such copy shall in all cases be provide the Daily News with the applicants' names and evidence of the original.' resumes. The language of this section was similar to two sections in Subsequently,the preliminary injunction was modified by the laws of Oregon°which in turn had counterparts in the stipulation of the parties to provide that the Municipality laws of California,' Montana,' Utah,' and Idaho.' would contact all applicants to determine whether they Decisions in these jurisdictions construing their acts wished to withdraw their applications rather than have indicate that it has never been doubted that such acts them made public.The names and information concerning cover municipal as well as state officials.' those applicants choosing to withdraw their applications would remain confidential.The parties also stipulated that Enactment of s 1039 seems to have been meant as a the preliminary injunction would be considered as a final codification of the common law rule with the added WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 3 507486\1002\00544019 35 City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316(1982) intent, perhaps, of eliminating the requirement that the concerning the right to inspect records.Existing law read: person *1320 seeking inspection have an interest. When Congress imposed a statutory duty of disclosure in s 1039 on"every public officer"it clearly intended to encompass Every person has a right to inspect any public writing both district and municipal officials; any contention that or record in said Territory, including public writings municipal officials were meant to be relieved of their and records in recorders'offices.... pre-statutory disclosure duties would plainly be frivolous s 58-1-2 ACLA (Supp.1958). The initial Senate Bill in view of this language. revised this to read: Section 1039 continued in effect until 1962, unchanged Every person has the right to except for two additions. In 1955 the reference to public inspect any public writing or writings in recorders' offices was added,'° followed in record in the office of any 1957 by the addition of the exceptions relating to medical recorder.... records, those of juveniles, and those records required to be kept confidential by federal or territorial law." SB 105 s 3.25, p. 18, 2d Leg., 1st Sess. (1961). The House Committee changed this to its present form: By 1931 the District of Alaska had become an organized territory.In that year the territorial legislature enacted the Every person has a right to forerunner of s .110. This enactment, Ch. 107, s 2 SLA inspect any public writing or 1931,''provided: record in the state, including public writings and records in The books, records, recorders'offices.... papers, files, accounts and transactions of every officer,board or institution in the s 3.22 HCS SB 105, p. 18, 2d Leg., 1st Sess. (1961) territory are public records, and subject to such which differs from preexisting law only in that the term reasonable rules as the officer in charge may prescribe, "the state" is substituted for "said Territory." The shall be open to inspection by the public during all the House Committee noted concerning this change: time the respective offices shall be open for business. "Material re inspection and copying of public records Except for the addition of language not relevant here, is restored because incorrectly revised."" this section, too, remained unchanged until 1962." It is therefore evident that the legislature had no intention Since it can hardly be questioned that municipal of changing the scope of the public records law in the officers were encompassed within the meaning of the 1962 recodification. The common law view that language "every officer ... in this territory," municipalities are required to make their records available municipalities were included within the provisions of to the public was adopted by statute in 1900 and has not the predecessor of s.110. been changed. In 1959 Alaska became a state. By that time the predecessors of ss .110 and .120 had been recodified B. Even without the evidence provided by legislative respectively as ss 58-1-1 and 58-1-2 ACLA 1949.In 1962 history,the municipalities' arguments on the language of these sections were repealed and re-enacted in their the statutes could not prevail. present form.Ch. 101,ss 3.22,3.23,SLA 1962.The 1962 re-enactment was accomplished as a part of a In arguing that ss .110 and .120 are not applicable, comprehensive revision of the entire territorial statutory appellants focus on the phrase "all agencies and code of civil procedure. This process was necessitated by departments"in the first sentence of s.110.They contend, statehood.The primary objective of the legislature was to first, that this phrase refers only to agencies and delete procedural provisions from the Alaska statutes in departments of the state government. There is no deference to this court's power under the state language in ss .110 or .120 so limiting "agencies and constitution to promulgate rules of procedure governing departments."We will not read such a limitation into this proceedings in all courts.'° language without evidence that it was intended. *1321 The report of the Alaska House Judiciary Appellants also argue that a municipality as such is not an Committee15 makes it clear that no substantive changes in agency or department and is therefore not covered by s pre-existing law were intended, except in certain .110. This argument, too, has little to commend it. enumerated areas not including the inspection and Conceding, for the scoses of argument, that the copying of public records.16 In fact the House Judiciary legislature would not describe a municipity as an agency Committee corrected an error in the Senate Bill or department, it is equally true that the legislature would ©2016 Thomson Reuters. No claim to original U.S. Government Works. 4 507486\1002\00544019 36 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) not describe the state government taken as a whole by using those terms.Municipal governments, as well as the A more recent legislature's reading of ss .110 and .120 is government of the state, encompass agencies and apparent in the enactment in 1977 of AS 39.51.020,which departments. The "agencies and departments" language provides that no public employee may be disciplined"for used in s .110 must be read as referring to the agencies communicating matters of public record or information and departments of the governments to which the statute under AS 09.25.110 and AS 09.25.120." "Public applies, but that language itself does not define what the employee"was defined in Section(b)of that enactment to applicable level of government is. include any employee of any state or local government.=° The adjective used in ss .110 and .120 which does define The municipalities argue that this section was enacted not the levels of government to which these sections apply is because of any legislative belief that AS 09.25.110 and the word "public." Thus, s .110 commands "the public .120 applied to local governments but because local officer" to make available certified copies on request. government employees often come into possession of Similarly, s .120 directs "every public officer" to make state records which are public and may wish to allow the unexcepted records available for inspection and copying. inspection of these records and need protection from We construe the word public as used in these sections to discipline by their employers in so doing.We find this to refer both to state and local officials. This construction is be a very strained and unnatural reading of the statute. It in accordance with the ordinary meaning of the term is far more logical to conclude that the 1977 legislature "public" which is that the word refers to all levels of assumed that ss .110 and .120 apply to municipalities as government: well as to the state and concluded that municipal as well as state employees were deserving of protection. Having a civil, or official, character, authority, status, or the The strongest argument made by the appellants is that the like; authoritatively serving or inclusion of municipalities would lead to absurd results representing the public;as,a public since there is no exception for records required to be kept official, prosecutor, or legislative confidential under a municipal ordinance while such an body;to hold public office;also,as exception does exist for state law.'' This exception,added in titles of departments, agencies, by the territorial legislature in 1957, must be viewed in etc., of the civic or state context.The public records disclosure statute had existed government; as, public *1322 without any expressed exceptions for more than 50 years. health, relief, welfare or safety." There was no basis under that statute for distinguishing its (Emphasis in original) application between territorial and municipal governments. As discussed supra, prior to the enactment It would be a corruption of the generally accepted of the statute the common law also required disclosure of meaning of the term "public" to argue, for example, that public records at both the state and municipal levels. the mayor of the municipality of Anchorage is not a However,under the statute prior to the 1957 amendment, public officer. Again, the dictionary agrees, defining the as under the common law, exceptions would have been term"public office"as permitted where there was a good reason for them." An office or position in the service While it is possible that the 1957 legislature may have of a nation,state,city,etc.' committed an oversight in not including an express exception for municipal ordinances,the failure to include The first sentence of s.120 provides that: such an exception can hardly *1323 mean that the legislature intended to exclude, by implication, Every person has a right to inspect municipalities from the basic disclosure requirement. If a public writing or record in the that had been the legislature's intent,it would,at the least, state....(Emphasis added). have changed the words"public officer"in ss 58-1-1 and 58-1-2 ACLA 1949 to"territorial officer." The legislature chose to say "in the state," not "of the In light of the common law rule, legislative history, and state." The boundaries of a statute are commonly sought our reading of the sections, we will construe ss .110 and and found within its terms. We think that the legislature .120,as we would have construed them prior to 1957,as a was conscious of the fact that it was defining scope here. strong legislative declaration that records in the Had the legislature intended to limit the application of s possession of municipalities shall be available for public .120 to state agencies and departments,it could easily and inspection,subject to exceptions based on need. clearly have done so. WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 5 507486\1002\00544019 37 City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316(1982) Appellants argue that they have an interest in "attracting the largest and most qualified applicant pool ..." and that this can best be accomplished by not disclosing the names ARE EMPLOYMENT APPLICATIONS OPEN TO and resumes of applicants. Further, they argue that INSPECTION? applicants have a constitutionally protected privacy 121 We turn next to the question whether the appellants interest=' in keeping confidential the fact that they have were justified in refusing to disclose the employment applied,and the contents of their applications.They argue that this interest is especially strong under the applications involved in these cases. In general,questions circumstances of these cases where the applications were such as these require a balance to be struck between the made with the expectation that they would remain public interest in disclosure on the one hand and the confidential. privacy and reputation interests of the affected individuals and the government's interest in confidentiality, on the There is a strong public interest in disclosure of the affairs other. The process of balancing has been described as of government generally,and in an open selection process follows: for high public officials in particular. AS 44.62.312(a) In determining whether the records should be made powerfully expresses the philosophy underlying this: available for inspection in any particular instance, the *1324 It is the policy of the state that court must balance the interest of the citizen in knowing what the servants of government are doing (1) the governmental units mentioned in AS and the citizen's proprietary interest in public property, 44.62.310(a)exist to aid in the conduct of the people's against the interest of the public in having the business business; of government carried on efficiently and without undue interference. The initial decision as to whether (2) it is the intent of the law that actions of those units inspection will be permitted must, of course, rest with be taken openly and that their deliberations be the custodian of the records. And since the justification conducted openly; for a refusal to permit inspection will depend upon the circumstances of the particular case, we can offer no (3) the people of this state do not yield their specific guide for that administrative decision. sovereignty to the agencies which serve them; (4)the people,in delegating authority,do not give their public servants the right to decide what is good for the In balancing the interests referred to above, the scales people to know and what is not good for them to know; must reflect the fundamental right of a citizen to have access to the public records as contrasted with the (5) the people's right to remain informed shall be incidental right of the agency to be free from protected so that they may retain control over the unreasonable interference. The citizen's predominant instruments they have created. interest may be expressed in terms of the burden of proof which is applicable in this class of cases; the In addition, ss .110 and .120 articulate a broad policy of burden is cast upon the agency to explain why the open records. records sought should not be furnished. Ultimately, of course, it is for the courts to decide whether the Public officials such as City Managers, and Chiefs of explanation is reasonable and to weigh the benefits Police have substantial discretionary authority. The accruing to the agency from non-disclosure against the qualifications of the occupants of such offices are of harm which may result to the public if such records are legitimate public concern. Disclosing the names and not made available for inspection.(Citation omitted). applications of applicants allows interested members of the public, such as the newspapers here, to verify the MacEwan v. Holm, 226 Or. 27, 359 P.2d 413, 421-22 accuracy of the representations made by the applicants, (1961)(In Banc). and to seek additional information which may be relevant to the selection process. In striking a proper balance the custodian of the records in the first instance,and the court in the next, should bear in The applicants' claim that revealing the names and mind that the legislature has expressed a bias in favor of applications of office seekers will narrow the field of public disclosure. Doubtful cases should be resolved by applicants and ultimately prejudice the interests of good permitting public inspection. government is not sufficiently compelling to overcome the public's interest in disclosure. In each of these cases a ©2016 Thomson Reuters. No claim to original U.S. Government Works. 6 507486\1002\00544019 38 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) majority of the applicants did not seek to withdraw their exempts from the requirement of disclosure"personnel ... applications rather than make them public. It is not files ... the release of which would constitute an intuitively obvious that most well qualified potential unwarranted invasion of privacy."Another section of the applicants for positions of authority in municipal Code includes an employee's application for employment governments will be deterred from applying by a public as a part of his personnel file.AMC s 3.30.016A.1. selection process,and we have been referred to no studies tending to prove that point. The trial court held that to the extent that the Anchorage public records ordinance prohibits disclosure of the The applicants' individual privacy interests in having applications of those seeking the position of Chief of their names and applications not revealed are also not of Police it was in irreconcilable conflict with AS 09.25.110 an order sufficient to overcome the public's interest. The and.120.We agree with this determination. applicants are seeking high government positions."Public officials must recognize their official capacities often As we have explained above, state law permits expose their private lives to public scrutiny.""Further,the municipalities to make exceptions to the rule of disclosure information sought is that which has been voluntarily only on the basis of need. Evaluation of the question of provided by the applicants to the municipalities. It is need necessarily involves a balancing process which in unlikely to be particularly embarrassing if publicly the case of applications for a post having substantial revealed." discretionary authority results in the balance being struck in favor of public disclosure. To the extent that the It may be that in some cases an individual will not wish Anchorage ordinance prohibits such disclosure it is his current employer to know that he has applied for directly inconsistent with state law and cannot be another job. That desire is one which cannot be accorded substantive effect.It is therefore invalid." accommodated where the job sought is a high public office. Even if the law did not compel disclosure of each . This does not mean that the remainder of AMC s 3.90 application, at some point before the final selection, as must fall. That result would be unwarranted, for the both appellants acknowledge,prudence would require the provisions of the ordinance are plainly meant to be municipality to contact the employers of those applicants severable?'Nor does this conclusion call into question the whose applications are being seriously considered. power of Anchorage to enact an ordinance dealing with the disclosure of public records which is consistent with Nonetheless, in Anchorage,the applicants were promised state law. Existing state law is neither so detailed nor confidentiality, and in Kenai several applicants at least comprehensive as to permit an inference that the assumed that their names and applications would not be legislature intended to occupy this field to the exclusion divulged. Since the law does not permit a confidential of municipalities. See Webster v. Bechtel, Inc., 621 P.2d application, we believe that both courts acted properly in 890,897(Alaska 1980).Alaska Board of Fish&Game v. allowing those applicants who desired confidentiality to Thomas,635 P.2d 1191 (Alaska 1981). withdraw their applications without public disclosure. There is little or no public interest in the names of withdrawn candidates. On the other hand, those candidates obviously believed that public disclosure would prejudice them in their current positions. With DELIBERATIONS IN EXECUTIVE SESSION respect to the applicants who withdrew their names, the balance was properly struck in favor of non-disclosure. 141 In Kenai the court enjoined the City from "any deliberations toward appointment of a city manager unless those deliberations are held in compliance" with the public meetings law, AS 44.62.310-.312.=' The court held that such deliberations "are not within any of the *1325 THE ANCHORAGE ORDINANCE exemptions of *1326 AS 44.62.310(c)" relating to subjects which may be discussed in executive session. 131 The Municipality of Anchorage has a public records The City of Kenai appeals from this ruling, contending ordinance codified in s 3.90 of the Anchorage Municipal that s .310(c) (2) which permits the discussion in Code. The ordinance announces a general policy of"the executive session of"subjects that tend to prejudice the fullest and most rapid access to municipal records and reputation and character of any person"is applicable. information" requiring "full disclosure of all public records ... except those specifically exempted under s The appellee does not contend that the City Council may 3.90.040...." AMC s 3.90.010. Part (B) of s 3.90.040 never go into executive session when discussing city WES' N ©2016 Thomson Reuters. No claim to original U.S. Government Works. 7 507486\1002\00544019 39 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) manager applicants. It argues that generally such Sherman v. Holiday Construction Co., 435 P.2d 16, 19 discussions do not have a tendency to damage the (Alaska 1967). reputation of the applicants, and that the City erred in routinely convening executive sessions. My conclusion that AS 09.25.110 does not apply to municipalities is based on four considerations: (a) the Appellee's reading of the statute is not without a degree terms "agency" and "department" have acquired a of merit. Ordinarily an applicant's reputation will not be particular meaning by legislative definition which is damaged by a public discussion of his or her inconsistent with the majority's conclusion; (b) the qualifications relating to experience, education and legislature has always used clear language whenever it background or by a comparison of them with those of has intended a statute to apply to local governments; (c) other candidates. However, a discussion of personal the majority's construction can lead to absurd results in characteristics and habits may well carry a risk that the other areas; and (d) the protective provisions of AS applicant's reputation will be compromised. Such a risk is 39.51.020 can be construed consistently with my position. especially acute where the qualities of several applicants are being compared. We believe therefore that the City The legislature always has defined "agency" or Council was authorized by s .310(c)(2) to meet in "department" as encompassing only state agencies or executive session while discussing the personal departments.An example is found in AS 40.21,pertaining characteristics of the applicants." To the extent that the to the management and preservation of public records: order of the court prohibits this,it must be reversed." "(1) `agency' or `state agency' means a department, Accordingly,in Anchorage,the order of the superior court office, agency, state board, commission, public is AFFIRMED;in Kenai,the order of the superior court is corporation or other organizational unit of or created AFFIRMED in part and REVERSED in part. under the executive branch of the state government ; the term does not include the University of Alaska; ..." (emphasis added). AS 40.21.150.Or,in AS 44.62,pertaining to adjudication CONNOR,J.,dissents in part. procedures: BURKE and COMPTON,JJ.,not participating. "(1) `agency' includes the state boards, commissions and officers listed in AS 44.62.330 and those to which this chapter is made applicable by law or executive order involving reorganization under the constitution; CONNOR,Justice,dissenting in part. "(emphasis added). I dissent from the majority opinion.In my view the phrase AS 44.62.640(b).Again, in AS 37.05,pertaining to fiscal procedures: "all agencies and departments" does not encompass municipal agencies. "(2) `state agency,' `agency,' `department,' or similar term means a department, officer, institution, board, *1327 Before analyzing the language at issue,it is helpful commission, bureau, division, or other administrative to first set out some general rules of statutory unit forming the state government, and includes the construction. The common and approved usage of words Alaska Pioneers' Home and the University of Alaska; and phrases is to be given effect,"unless such words and ..."(emphasis added). phrases have acquired peculiar meaning by virtue of statutory definition or judicial construction." Lynch v. AS 37.05.320. McCann,478 P.2d 835, 837(Alaska 1970);2A C. Sands, Sutherland Statutory Construction s 46.01, at 48-9 (4th On the other hand, whenever local application has been ed. 1974).' "(W)here the legislative branch has expressed intended, clear language has been utilized. Legislative its intent ... in language so unambiguous as to leave no enactments distinguish between state departments or doubt as to the meaning or scope of the result dictated,the agencies and political subdivisions by expressly providing function of the courts is simply to apply that language." for application to both,or by articulating either parallel or State v. City of Anchorage, 513 P.2d 1104, 1109 (Alaska contrasting powers or duties in separate sections.' 1973). Every word of a statute should be accorded Adopting the majority's construction makes *1328 such meaning, 2A C. Sands, supra, s 46.06, at 63; but modifying language redundant and thus fails to accord all constructions leading to absurd results are to be avoided. terms a definite meaning. ©2016 Thomson Reuters. No claim to original U.S. Government Works. 8 507486\1002\00544019 40 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) (c) A violation of this section is a misdemeanor." A review of other statutes illustrates this point. For (emphasis added). example, when addressing records management by governmental units, the legislature delineated local and The statute clearly protects local government employees non-local application. Enacted in 1970, one purpose of who release information under AS 09.25.110-.120. AS 40.21 was"to provide for the orderly management of Although the newspapers argue that this evinces a current state and local public records...." AS 40.21.010. legislative intent that AS 09.25.120 applies to local The statute distinguishes between "local record," governments, I believe that the statute's purpose is to "record," and "state record,"' and explicitly addresses protect municipal employees who come into possession of management of local records in a separate section.' state agency records and subsequently release them. Further, the statute limits the term "agency" to state agencies.' Municipal employees may come into possession of state records which are public under state law, but which are Of greater significance is AS 44.62.310,pertaining to the confidential under, for example, Anchorage's freedom of analogous issue of access to governmental meetings. information ordinance. See AMC 3.90.010 et seq. Enacted substantially in its present form in 1959,6 the Anchorage asserts that municipal employees possess state open meeting requirement explicitly was made applicable records pertaining to labor agreements, personnel to the: classification and pay scales,demographic and work force statistics, and financial audits of state funded programs. Without the protection of AS 39.51.020, it argues, a "governing bodies of all State and local government municipal employee may be reluctant to release such agencies, including municipalities, boroughs, school information, even though public under AS boards and all other boards, agencies, assemblies, 09.25.110-.120. Thus, the intent of AS 39.51.020 can be councils,departments, divisions,bureaus, commissions construed as that of precluding the transmutation of a or organizations(advisory or otherwise)of the State or document's public character due solely to a change in local government ... except juries and such other governmental hands. Absent a clearer legislative agencies as shall be expressly exempt by the expression that AS 09.25.110-.120 applies to local Legislature...." government, I believe this argument adequately explains Ch. 143 (Ch. 1,art.VI,s 1) SLA 1959.The legislature the intent of AS 39.51.020. certainly knew in 1959 how to make a statute applicable to local government;yet when it enacted AS In light of the constitutional requirement that"(a) liberal 09.25.110-.120 three years later, language evidencing construction shall be given to the powers of local such an intent was,and remains,conspicuously absent.' government,"10 I do not believe that AS 09.25.110 should *1329 The majority's interpretation of "agencies and govern access to local governmental records unless the departments" also has the potential of leading to absurd legislative intent to do so is clear. As the City of Kenai results.For example,AS 09.25.120 authorizes the state to argues, "state foreclosure of local policymaking exempt certain records from disclosure, which the state (regarding records)should not occur unless there is(1)an has done,' but does not grant municipalities the same overriding need for a uniform state policy,or(2)reason to power.' Thus, while state personnel records might not be believe that local decisions might be unfair to a particular public,municipal personnel records may be. group which is unable to protect itself through the local political process." There is no evidence that such The strongest argument that AS 09.25.110 was intended considerations apply here. Thus I believe that the to apply to municipalities is based on the language of AS ambiguous provisions of AS 09.25.110-.120 should be 39.51.020.Enacted in 1977,that statute states: limited in application to state agencies or departments, and would,therefore,reverse the superior court's contrary "(a)No public employee may be dismissed,demoted or conclusion. suspended, laid off or otherwise made subject to any disciplinary action for communicating matters of public record or information under AS 09.25.110 and AS 09.25.120. All Citations (b) As used in this section, `public employee' means 642 P.2d 1316 any employee receiving compensation for services provided to the state (including the University of Alaska)or any political subdivision of the state. ©2016 Thomson Reuters. No claim to original U.S. Government Works. 9 507486\1002\00544019 41 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) Footnotes Van Hoomissen and Taylor, Superior Court Judges,sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska. 1 AS 09.25.110 provides: Inspection and copies of public records. Unless specifically provided otherwise the books, records, papers, files, accounts, writings, and transactions of all agencies and departments are public records and are open to inspection by the public under reasonable rules during regular office hours. The public officer having the custody of public records shall give on request and payment of costs a certified copy of the public record. 2 AS 09.25.120 provides: Inspection and copying of public records. Every person has a right to inspect a public writing or record in the state, including public writings and records in recorders' offices except(1) records of vital statistics and adoption proceedings which shall be treated in the manner required by AS 18.50.010-18.50.380; (2) records pertaining to juveniles; (3) medical and related public health records; (4) records required to be kept confidential by a federal law or regulation or by state law. Every public officer having the custody of records not included in the exceptions shall permit the inspection, and give on demand and on payment of the legal fees therefor a certified copy of the writing or record, and the copy shall in all cases be evidence of the original. Recorders shall permit memoranda, transcripts, and copies of the public writings and records in their offices to be made by photography or otherwise for the purpose of examining titles to real estate described in the public writings and records, making abstracts of title or guaranteeing or insuring the titles of the real estate, or building and maintaining title and abstract plants; and shall furnish proper and reasonable facilities to persons having lawful occasion for access to the public writings and records for those purposes, subject to reasonable rules and regulations, in conformity to the direction of the court, as are necessary for the protection of the writings and records and to prevent interference with the regular discharge of the duties of the recorders and their employees. 3 s 1039, pt. IV(Code of Civil Procedure), Carter's Ann.Alaska Code(1900). 4 The two sections were ss 717 and 718 Hill's,Title V Ann. Laws of Oregon which read: Section 717. Every citizen of this state has a right to inspect any public writing of this state, except as otherwise expressly provided by this code or some other statute. Section 718. Every public officer having the custody of a public writing which a citizen has a right to inspect is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor, and such copy is primary evidence of the original writing. The Oregon statute also contained four other sections which were not enacted by Congress for the District of Alaska. These sections are: Title IV 714.Writings are of two kinds:-(1)public;and(2)private. 715. Public writings are:-(1)the written acts,or records of the acts, of the sovereign authority of official bodies and tribunals and of public officers, legislative,judicial, and executive,whether of this state, of the United States, or a sister state,or a foreign country. 716.All other writings are private. Title V 719. Public writings are divided into four classes:-(1) Laws; (2)Judicial records; (3) Other official documents; (4) Public records kept in this state,of private writings. 5 California Code of Civil Procedure ss 1892, 1893(Deerings Califomia Codes, 1967). 6 Montana R.C. s 10541; 3170-3182 Code of Civil Procedure of 1895, now codified as ss 2-6-101, 2-6-102 Montana Revised Statutes. 7 Utah Code Section 78-26-1 through 3. 8 Idaho C.C.P.of 1881 ss 902, 903,currently 9-301,9-302 Idaho Code(1979). 9 Gallagher v. Boller, 231 Cal.App.2d 482, 41 Cal.Rptr. 880 (1964);Whelan v. Superior Court, 114 Cal. 548, 46 P. 468 ©2016 Thomson Reuters. No claim to original U.S. Government Works. 10 507486\1002\00544019 42 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) (1896); Mushet v. Dept. of Public Service of City of Los Angeles, 35 Cal.App. 630, 170 P. 653 (1917); Harrison v. Powers, 19 Cal.App. 762, 127 P. 818 (1912); San Francisco v. Superior Court, 38 Cal.2d 156, 238 P.2d 581 (1951); Co!dwell v. Board of Public Works, 187 Cal. 510, 202 P. 879 (1921); Miller v. Murphy, 78 Cal.App. 751, 248 P. 934 (1926); Jessup v. Superior Court, 151 Cal.App.2d 102, 311 P.2d 177 (1957); Santa Monica v. Superior Court, 204 Cal.App.2d 68, 21 Cal.Rptr. 896(1962); Connover v. Board of Education of Nebo School District, 1 Utah 2d 375, 267 P.2d 768(1954);State v. Keller, 143 Or.589, 21 P.2d 807(1933);State ex rel. Halloran v. McGrath, 104 Mont.490, 67 P.2d 838(1937). 10 Ch.32,s 1,SLA 1955. 11 Ch.54,s 1,SLA 1957. 12 Codified initially ass 2935, CLA 1933. 13 In 1947, language concerning information in the possession of the tax commissioner was adopted. Also added at that time was the phrase "except where otherwise specified or declared." Ch. 46, s 1, SLA 1947. As a result the statute read: WHAT ARE PUBLIC RECORDS: INSPECTION. Except where otherwise specified or declared, the books, records, papers, files, accounts, writings and transactions of every officer, board or institution in this Territory are public records and subject to such reasonable rules as the officer in charge may prescribe, and shall be open to inspection by the public during all the time the respective offices shall be open for business. Any information in the possession of the Tax Commissioner which discloses the particulars of the business or affairs of a taxpayer, or other person, is not matter of public record, except for purposes of law enforcement and the investigation by any person of law compliance, and shall be kept confidential except when production thereof is required in an official investigation or court proceeding; provided, that nothing herein shall be construed to prohibit the publication of statistics so classified as to prevent the identification of particular reports and items thereof, or of the publication of delinquent lists showing the names of taxpayers who have failed to pay their taxes at the time and in the manner provided by law,together with any relevant information which may assist in the collection of such delinquent taxes. 14 Alaska Const.Art. IV,s 15 provides: Rule-Making Power. The supreme court shall make and promulgate rules governing the administration of all courts. It shall make and promulgate rules governing practice and procedure in civil and criminal cases in all courts.These rules may be changed by the legislature by two-thirds vote of the members elected to each house. The process of revision is alluded to in Silverton v. Marler, 389 P.2d 3, 5(Alaska 1964)and is fully described in the Forward to the Alaska Rules of Court,Volume 1, pp. i-vi. 15 62 House Journal 390-397(1962). 16 Ibid.at 393-397. 17 62 House Journal 395(1962). 18 Webster's New International Dictionary(2d ed. 1960). 19 Id. 20 AS 39.51.020 provides: Obstruction of access to public information. (a) No public employee may be dismissed, demoted or suspended, laid off or otherwise made subject to any disciplinary action for communicating matters of public record or information under AS 09.25.110 and 09.25.120. (b)As used in this section, "public employee" means any employee receiving compensation for services provided to the state(including the University of Alaska)or any political subdivision of the state. (c)A violation of this section is a misdemeanor. WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 11 507486\1002\00544019 43 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) 21 AS 09.25.120(4)excepts from the disclosure requirement"records required to be kept confidential by a federal law or regulation or by state law." 22 See State ex rel. Wellford v. Williams, 110 Tenn. 549, 75 S.W. 948 (1903); cf. State ex rel. Colescott v. King, 154 Ind. 621, 57 N.E. 535(1900);Clement v. Graham, 78 Vt.290,63 A. 146(1906). 23 Art. I, s 22 of the Alaska Const. states in part: "The right of the people to privacy is recognized and shall not be infringed." 24 Advisory Opinion on Constitutionality of 1975 PA 227, 242 N.W.2d 3, 19(Mich.1976);quoted in Falcon v.Alaska Public Offices Com'n,570 P.2d 469,474 n.15(Alaska 1977). 25 Cf. Falcon v.APOC, 570 P.2d at 479-80,where we noted that the mere fact that a named private individual had visited a doctor was not protected private information, but protection did attach if there was a basis for an inference that the person had a potentially embarrassing mental or medical condition. 26 See City of Kodiak v.Jackson,584 P.2d 1130, 1132(Alaska 1978). 27 AMC s 1.05.040 provides: The sections, paragraphs, sentences, clauses and phrases of this code are severable, and if any phrase, clause, sentence, paragraph or section of this code is declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this code. 28 AS 44.62.310 provides: Agency meetings public. (a)All meetings of a legislative body, of a board of regents, or of an administrative body, board, commission, committee, subcommittee, authority, council, agency, or other organization, including subordinate units of the above groups, of the state or any of its political subdivisions, including but not limited to municipalities, boroughs, school boards, and all other boards, agencies, assemblies, councils, departments, divisions, bureaus, commissions or organizations, advisory or otherwise, of the state or local government supported in whole or in part by public money or authorized to spend public money, are open to the public except as otherwise provided by this section. Except when voice votes are authorized, the vote shall be conducted in such a manner that the public may know the vote of each person entitled to vote. This section does not apply to any votes required to be taken to organize the afore-mentioned bodies. (b) If excepted subjects are to be discussed at a meeting, the meeting must first be convened as a public meeting and the question of holding an executive session to discuss matters that come within the exceptions contained in (c) of this section shall be determined by a majority vote of the body. No subjects may be considered at the executive session except those mentioned in the motion calling for the executive session unless auxiliary to the main question. No action may be taken at the executive session. (c)The following excepted subjects may be discussed in an executive session: (1) matters, the immediate knowledge of which would clearly have an adverse effect upon the finances of the government unit; (2)subjects that tend to prejudice the reputation and character of any person, provided the person may request a public discussion; (3)matters which by law, municipal charter,or ordinance are required to be confidential. (d)This section does not apply to (1) judicial or quasi-judicial bodies when holding a meeting solely to make a decision in an adjudicatory proceeding; (2)juries; (3)parole or pardon boards; (4)meetings of a hospital medical staff;or (5) meetings of the governing body of any committee of a hospital when holding a meeting solely to act upon matters of professional qualifications, privileges or discipline. (e)Reasonable public notice shall be given for all meetings required to be open under this section. (f)Action taken contrary to this section is void. AS 44.62.312 provides: State policy regarding meetings.(a)It is the policy of the state that (1)the governmental units mentioned in AS 44.62.310(a)exist to aid in the conduct of the people's business; (2) it is the intent of the law that actions of those units be taken openly and that their deliberations be conducted openly; ©2016 Thomson Reuters. No claim to original U.S. Government Works. 12 507486\1002\00544019 44 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) (3)the people of this state do not yield their sovereignty to the agencies which serve them; (4) the people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know; (5) the people's right to remain informed shall be protected so that they may retain control over the instruments they have created. (b)AS 44.62.310(c)(1)shall be construed narrowly in order to effectuate the policy stated in(a)of this section and avoid unnecessary executive sessions. 29 Care should be taken, of course, to observe the procedures for convening executive sessions set out in s .310(b):The meeting must first be convened as public; the question of holding an executive session concerning excepted subjects must be determined by majority vote; only excepted subjects, and only those mentioned in the motion calling for the executive session, may be considered in the executive session;and no action may be taken at the executive session. 30 In Anchorage we are asked to review the trial court's conclusion that the selection committee of the mayor was a committee covered by AS 44.62.310.We decline to do so because no part of the order issued by the court was based on that conclusion and review would be merely advisory. This rule is codified in AS 01.10.040: "Words and phrases shall be construed according to the rules of grammar and according to their common and approved usage. Technical words and phrases and those which have acquired a peculiar and appropriate meaning, whether by legislative definition or otherwise, shall be construed according to the peculiar and appropriate meaning." 2 For example, AS 09.50.250(1) and AS 09.65.070(d)(2) (separate provisions for state and municipal immunity from suit);AS 09.55.240(a)(2)and (3)(eminent domain powers granted separately to state and political subdivisions).Other provisions in AS 09.25 distinguish between state and local "agencies," specifying each when a statute is intended to apply to both. For example, AS 09.25.170(a)(4), concerning the assertion of certain privileges, refers to"an agency or representative of an agency of the state, borough, city or other municipal corporation...." Further, as Kenai argues, matters directly pertaining to municipal operations tend to be collected in Title 29, even though they often appear in other titles as well. (Title 29 is entitled"Municipal Government"; Title 9, the source of the asserted public disclosure requirement, is entitled "Code of Civil Procedure.") For example, AS 29.23.580 specifies that the open meetings requirement of AS 44.62.310 applies to home rule and general law municipalities, even though AS 44.62.310 makes this clear by its own terms.Another example is AS 14.12.020(a), which is substantially reiterated in AS 29.33.050. 3 AS 40.21.150 states, in part: "Definitions. In this chapter, unless the context otherwise requires, (4) 'local record' means a public record of a city or borough of any class, villages, district, authority or other political subdivision unless the record is designated or treated as a state record under state law; (5)'record'means any document, (etc.)...developed or received under law or in connection with the transaction of official business and preserved or appropriate for preservation by an agency or political subdivision, as evidence of the organization, function, policies, decisions, procedures, operations or other activities of the state or political subdivision or because of the informational value in them; ... (7) 'state record' means a record of a department, office, commission, board, public corporation, or other agency of the state government, including a record of the legislature or a court and any other record designated or treated as a public record under state law." 4 AS 40.21.070 states: "Records management for local records. The governing body of each political subdivision of the state shall promote the principles of efficient records management for local public records kept in accordance with state law. The governing body shall, as far as practical, follow the program established for the management of state records. The department shall, upon request of the governing body of a political subdivision, provide advice and assistance in the establishment of a local records management program." 5 AS 40.21.150(1)states: " 'agency' or 'state agency' means a department, office, agency, state board, commission, public corporation or other organizational unit of or created under the executive branch of the WEST LAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 13 507486\1002\00544019 45 City of Kenai v. Kenai Peninsula Newspapers, Inc.,642 P.2d 1316(1982) state government;the term does not include the University of Alaska; ..." 6 Although the section has been amended numerous times, it has remained applicable to local governments. 7 Although not dispositive, it is interesting to note the repeated legislative efforts to enact a comprehensive public access-to-records act. Those bills always address whether the act should apply to municipalities. See CSHB 131 (Judiciary), 10th Legislature, First Session(1977)(making disclosure applicable to"governmental units,"subsequently defined to include political subdivisions). Compare HB75, 11th Legislature, First Session (1979) ("governmental unit" includes political subdivisions) with SCS CSHB 75, 11th Legislature, First Session (1979) ("governmental units" restricted to executive branch agencies). If the current statute applies to local governments, such subsequent legislation would be unnecessary. Inferentially, the legislature has never believed that AS 09.25.110-.120 applies to municipalities. 8 See AS 39.25.080; State Personnel Rules 14.07.0. 9 The cities provide another example. If "agencies and departments" in AS 09.25.110 encompasses them, it should similarly do so with respect to AS 44.62.320(a): "The legislature, by a concurrent resolution adopted by a vote of both houses, may annul a regulation of an agency or department."(emphasis added). (Originally enacted in 1959 as ch. 143, s 1, SLA; held unconstitutional on unrelated grounds in State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980).) No one, Kenai argues, would contend that the legislature reasonably intended this provision to encompass regulations of local governmental agencies. 10 Alaska Const. art. X, sec. 1. See Bookey v. Kenai Peninsula Borough, 618 P.2d 567, 569 (Alaska 1980); Liberati v. Bristol Bay Borough, 584 P.2d 1115, 1123(Alaska 1978); Jefferson v. State, 527 P.2d 37, 42 (Alaska 1974). See also AS 29.48.310;Municipality of Anchorage v. Frohne, 568 P.2d 3(Alaska 1977). End of Document ©2016 Thomson Reuters.No claim to original U.S.Government Works. WESTLAW ©2016 Thomson Reuters. No claim to original U.S. Government Works. 14 507486\1002\00544019 46 Sponsored by: Introduction: Public Hearing: Enactment: CITY OF SEWARD,ALASKA RESOLUTION 2016- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, REVISING THE COUNCIL RULES OF PROCEDURE REGARDING EVALUATIONS OF APPOINTED OFFICIALS WHEREAS,the City of Seward City Council performs annual evaluations of its appointed officials,the City Manager,the City Clerk, and The City Attorney; WHEREAS,frank and honest dialog is essential to the evaluation process which is enhanced by written and scored evaluations by individual Council members and generally discussed in executive session; WHEREAS,the comments of individual members of the council can be personal and should not be taken out of context; WHEREAS,the potential public disclosure of individual Council members comments has a "chilling effect"on honest dialog: WHEREAS,the reputational interests of the appointed officials and the interest of the public in having the business of government carried on efficiently and without undue interference must be balanced against the interest of the citizen in knowing what the servants of government are doing and the citizen's proprietary interest in public property; and WHEREAS,the current City Code and Council Policies do not directly address the retention and disclosure of Council's evaluations; NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD,ALASKA that: Section 1. City Council Rule of Procedure 16,EVALUATION OF APPOINTED OFFICIALS, is amended as follows: S eout =delete Bold Italics=new The City Council shall evaluate the performance of the City Attorney,City Clerk and the City Manager separately and annually during the first council meeting in January, February and March of each year. These can be conducted in Executive Session.During the evaluation,the Council shall set goals,priorities and conduct salary negotiation for these appointed officials for the upcoming year. 507486\1002\00544126 47 CITY OF SEWARD,ALASKA RESOLUTION 2016- The City Attorney,City Manager and City Clerk will complete a summary stating their accomplishments for the past review period and their goals for the upcoming review period.The City Clerk will provide the necessary blank evaluation forms, and the appointed official's completed goals and accomplishments summary to the Council no later than two weeks prior to the scheduled evaluation. The Mayor can appoint a member of the Council to receive the completed forms and tabulate the results prior to the formal evaluation sessions. Although such tabulations and any summaries created may contain the scores and comments of individual Council Members,they sisal!do so without specific attributiontAt any time,the council may,by majority vote,make a motion to hold additional evaluations as they feel is necessary. Unless an evaluation is held in open session, the evaluation forms and other written materials by individual Council members will be destroyed. All tabulations and summaries shall be retained as public records. [See Appendices for City Manager, City Attorney and City Clerk evaluation forms.] Section 2. . This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward,Alaska,this day of , 2016. THE CITY OF SEWARD, ALASKA Jean Bardarson, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Johanna Kinney,CMC City Clerk (City Seal) 507486\1002\00544126 48 Sponsored by: Introduction: Public Hearing: Enactment: CITY OF SEWARD,ALASKA RESOLUTION 2016- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, REVISING THE COUNCIL RULES OF PROCEDURE REGARDING EVALUATIONS OF APPOINTED OFFICIALS WHEREAS,the City of Seward City Council performs annual evaluations of its appointed officials,the City Manager,the City Clerk, and The City Attorney; WHEREAS,frank and honest dialog is essential to the evaluation process which is enhanced by written and scored evaluations by individual Council members and generally discussed in executive session; WHEREAS,the comments of individual members of the council can be personal and should not be taken out of context; WHEREAS,the potential public disclosure of individual Council members comments has a "chilling effect"on honest dialog: WHEREAS,the reputational interests of the appointed officials and the interest of the public in having the business of govenunent carried on efficiently and without undue interference must be balanced against the interest of the citizen in knowing what the servants of government are doing and the citizen's proprietary interest in public property; and WHEREAS,the current City Code and Council Policies do not directly address the retention and disclosure of Council's evaluations; NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD,ALASKA that: Section 1. City Council Rule of Procedure 16,EVALUATION OF APPOINTED OFFICIALS, is amended as follows: Stlikeeut-=delete Bold Italics=new The City Council shall evaluate the performance of the City Attorney,City Clerk and the City Manager separately and annually during the first council meeting in January, February and March of each year. These can be conducted in Executive Session.During the evaluation,the Council shall set goals,priorities and conduct salary negotiation for these appointed officials for the upcoming year. 507486\1002\00544127 49 CITY OF SEWARD,ALASKA RESOLUTION 2016- The City Attorney,City Manager and City Clerk will complete a summary stating their accomplishments for the past review period and their goals for the upcoming review period.The City Clerk will provide the necessary blank evaluation forms, and the appointed official's completed goals and accomplishments summary to the Council no later than two weeks prior to the scheduled evaluation. The Mayor can appoint a member of the Council to receive the completed forms and tabulate the results prior to the formal evaluation sessions. Although such tabulations and any summaries created may contain the scores and comments of individual Council Members,they stall do so without specific attribution. At any time,the council may,by majority vote,make a motion to hold additional evaluations as they feel is necessary. Unless an evaluation is held in open session, the evaluation forms and other written materials by individual Council members will be held as confidential until end of the appointed official's term in office. .411 tabulations and summaries shall be retained as public records. [See Appendices for City Manager, City Attorney and City Clerk evaluation forms.] Section 2. . This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward,Alaska,this day of ,2016. THE CITY OF SEWARD,ALASKA Jean Bardarson, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Johanna Kinney,CMC City Clerk (City Seal) 507486\1002\00544127 50 Sponsored by: Introduction: Public Hearing: Enactment: CITY OF SEWARD,ALASKA RESOLUTION 2016- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, REVISING THE COUNCIL RULES OF PROCEDURE REGARDING EVALUATIONS OF APPOINTED OFFICIALS WHEREAS,the City of Seward City Council performs annual evaluations of its appointed officials,the City Manager,the City Clerk, and The City Attorney; WHEREAS,frank and honest dialog is essential to the evaluation process which is enhanced by written and scored evaluations by individual Council members and generally discussed in executive session; WHEREAS,the comments of individual members of the council can be personal and should not be taken out of context; WHEREAS,the potential public disclosure of individual Council members comments has a "chilling effect"on honest dialog; WHEREAS,the reputational interests of the appointed officials and the interest of the public in having the business of govenunent carried on efficiently and without undue interference must be balanced against the interest of the citizen in knowing what the servants of government are doing and the citizen's proprietary interest in public property; and WHEREAS,the current City Code and Council Policies do not directly address the retention and disclosure of Council's evaluations; NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD,ALASKA that: Section 1. City Council Rule of Procedure 16,EVALUATION OF APPOINTED OFFICIALS,is amended as follows: Stpikeeut-=delete Bold Italics=new The City Council shall evaluate the performance of the City Attorney,City Clerk and the City Manager separately and annually during the first council meeting in January, February and March of each year. These can be conducted in Executive Session.During the evaluation,the Council shall set goals,priorities and conduct salary negotiation for these appointed officials for the upcoming year. 507486\1002\00544129 51 CITY OF SEWARD,ALASKA RESOLUTION 2016- The City Attorney,City Manager and City Clerk will complete a summary stating their accomplishments for the past review period and their goals for the upcoming review period.The City Clerk will provide the necessary blank evaluation forms, and the appointed official's completed goals and accomplishments summary to the Council no later than two weeks prior to the scheduled evaluation. The Mayor can appoint a member of the Council to receive the completed forms and tabulate the results prior to the formal evaluation sessions. .4lthough such tabulations and any summaries created may contain the scores and continents of individual Council Members,they shall do so without specific attribution. At any time,the council may,by majority vote,make a motion to hold additional evaluations as they feel is necessary. All evaluations, tabulations and summaries shall be retained as public records. [See Appendices for City Manager, City Attorney and City Clerk evaluation forms.] Section 2. . This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward,Alaska,this day of ,2016. THE CITY OF SEWARD,ALASKA Jean Bardarson, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Johanna Kinney, CMC City Clerk (City Seal) 507486\1002\00544129 52 Sponsored by: Introduction: Public Hearing: Enactment: CITY OF SEWARD,ALASKA RESOLUTION 2016- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, REVISING THE COUNCIL RULES OF PROCEDURE REGARDING EVALUATIONS OF APPOINTED OFFICIALS WHEREAS,the City of Seward City Council performs annual evaluations of its appointed officials,the City Manager,the City Clerk, and The City Attorney; WHEREAS,frank and honest dialog is essential to the evaluation process which is enhanced by written and scored evaluations by individual Council members and generally discussed in executive session; WHEREAS,the comments of individual members of the council can be personal and should not be taken out of context; WHEREAS,the potential public disclosure of indivictilittouncil members comments has a "chilling effect"on honest dialog; WHEREAS,the reputational interests of the appointed officials and the interest of the public in having the business of govenunent carried on efficiently and without undue interference must be balanced against the interest of the citizen in knowing what the servants of government are doing and the citizen's proprietary interest in public property; and WHEREAS,the current City Code and Council Policies do not directly address the retention and disclosure of Council's evaluations; NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD,ALASKA that: Section 1. City Council Rule of Procedure 16, EVALUATION OF APPOINTED OFFICIALS,is amended as follows: Strikeout = delete Bold Italics=new The City Council shall evaluate the performance of the City Attorney,City Clerk and the City Manager separately and annually during the first council meeting in January, February and March of each year. These can be conducted in Executive Session.During the evaluation,the Council shall set goals,priorities and conduct salary negotiation for these appointed officials for the upcoming year. 507486\1002\00544133 53 CITY OF SEWARD,ALASKA RESOLUTION 2016- The City Attorney,City Manager and City Clerk will complete a summary stating their accomplishments for the past review period and their goals for the upcoming review period.The City Clerk will provide the necessary blank evaluation forms, and the appointed official's completed goals and accomplishments summary to the Council no later than two weeks prior to the scheduled evaluation. The Mayor can appoint a member of the Council to receive the completed forms and tabulate the results prior to the formal evaluation sessions. Although such tabulations and any summaries created may contain the scores and comments of individual Council Members,they shall do so without specific attribution. At any time,the council may,by majority vote,make a motion to hold additional evaluations as they feel is necessary. Unless an evaluation is held in open session, all documents created for or during an evaluation will be considered confidential personal records and not public records. [See Appendices for City Manager, City Attorney and City Clerk evaluation forms.] Section 2. . This resolution shall take effect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward,Alaska,this day of , 2016. THE CITY OF SEWARD,ALASKA Jean Bardarson, Mayor AYES: NOES: ABSENT: ABSTAIN: ATTEST: Johanna Kinney, CMC City Clerk (City Seal) 507486\1002\00544133 54