LEGISLATIVE AND HUMAN RESOURCES COMMITTEE MINUTES
Tuesday, October 24, 2000 - 8:00 a.m.
Kent County Administration Building - Room 310
MEMBERS PRESENT: Chair Jerry Kooiman; Commissioners Marvin Hiddema, Jim Talen, Jack Horton, Herschell Turner, Rick Smoke, Ken Kuipers, and Tom Postmus
MEMBERS ABSENT: Commissioner Bev Rekeny
ALSO PRESENT: County Administrator Daryl Delabbio; Executive Assistant to the Board Jim Day; Assistant County Administrator Al Vanderberg; Civil Counsel Sherry Farrens; Management Analyst Eileen Pierce; Aeronautics Board Chair John Van Laar; Director of Aeronautics Jim Koslosky; Deputy Director of Aeronautics Phil Johnson; Aeronautics Finance & Administration Director Brian Picardat; Fiscal Services Financial Analyst Dick Anderson; Student Representative Nick Van Wingerden; and Sr. Administrative Specialist Pam Van Keuren
Chair Kooiman called the meeting to order at 8:05 a.m.
Mr.Hiddema moved to approve the September 26, 2000, minutes as written.
Supported by Mr. Postmus.
Mr. Delabbio stated approval is requested to receive an appeal of the denial of a FOIA request, and forward same to Civil Counsel for preparation of legal opinion and related materials for presentation to the Legislative Committee and the Board of Commissioners in November. A summary of the request follows:
On July 27, 2000, Sheriff Dougan received a FOIA request from the criminal defense law firm of Miller & Associates, headquartered in Santa Monica, California.
Miller & Associates requested that the Sheriff provide lists of recent arrestees on an ongoing basis, including each arrestee's first and last name, address, and arrest code. The firm indicated that it planned to use the information to offer its legal services to arrestees in the form of legal consultations.
The Sheriff's Department exercised its right to a statutory extension of time to respond, and forwarded the request to Civil Counsel.
On August 23, 2000, Civil Counsel denied the request on the grounds that booking and arrest records of those not convicted of a crime are exempt from disclosure under FOIA's privacy exemption. The denial also cited a supporting Attorney General's opinion.
On October 6, 2000, Civil Counsel received Miller & Associate's request for appeal of the denial.
In accordance with FOIA, the appeal is not considered received by a public body (a governing board or commission) until that body's first regularly scheduled meeting following receipt. The first regularly scheduled meeting of the Legislative and Human Resources Committee, through which this appeal must pass, is today's meeting.
After receipt, Civil Counsel will provide the Committee and the Board with a legal opinion, related materials, and other necessary assistance to fully inform them of legal and procedural issues necessary to conduct a hearing on the appeal.
No funding is required.
Mr. Postmus moved to receive an appeal of the denial of a FOIA request, and forward same to Civil Counsel for preparation of legal opinion and related materials for presentation to the Legislative Committee and the Board of Commissioners in November.
Supported by Mr. Talen.
Mr. Talen asked what the purpose of the request is.
Ms. Farrens explained the FOIA request. After reviewing the request, Civil Counsel denied the request. Since then, Civil Counsel has received a request for appeal of the denial. The Sheriff's Department, who received the FOIA request, is required to acknowledge receipt of the appeal to a governing body or commission before the appeal process can begin.
(Commissioner Horton arrived at this time.)
Mr. Hiddema asked at what point would this be brought to the Board of Commissioners.
Ms. Farrens stated Civil Counsel will provide the Committee with research and a legal opinion to review before it would go to the Board for a public hearing.
(Commissioner Smoke arrived at this time.)
Mr. Hiddema stated it is clear that booking and arrest records of those who are not convicted of a crime are exempt from disclosure, but what about the records of those who are convicted of a crime. Could the requesting party come back and ask for those records?
Ms. Farrens explained yes they could and in fact the law is clear that the County would be required to provide that information to them.
Mr. Talen asked if it would be possible for citizens who went through FOIA procedures with the Aeronautics Board for example, to have appealed those judgements also to the Board of Commissioners and if so how is that different from the Sheriff's Department.
Ms. Farrens replied it would be logical in a case where a governing board exists, to take those appeals to that governing board. However, when the FOIA policy was created, it was concluded that if there were not an intervening governing board, any appeals would come to the Board of Commissioners.
Ms. Farrens further explained the Board is not being asked to make a determination of the FOIA request, but are being asked to serve essentially as a quasi-judicial body to come to a legal conclusion as to whether or not the denial is valid and should be upheld.
(Commissioner Kuipers arrived at this time.)
Mr. Postmus asked if there is a charge-back fee that could be applied for retrieving the requested information that could prevent this situation from becoming a solicitation or work list for businesses.
Ms. Farrens explained that under FOIA, the County is permitted to charge for the cost of both labor and supplies in fulfilling a request. Generally, this is done at the pay rate of the lowest paid employee who can logically be expected to retrieve the information. Further, the request was denied because the request does not relate to government processes or procedures and has nothing to do with the workings of government.
Mr. Horton stated this request is a creative way to force the County to provide an on-going free referral service. The County should consider working with the County's Lobbyist to contact our Legislatures, asking them to review whether or not FOIA can be used this way and to possibly update the statute to prohibit this type of abuse.
Aeronautics Board Chair John VanLaar provided the Committee with an overview of the Aeronautics Board, a copy of which is on file in the Board of Commissioners' Office.
Discussion interaction topics included regional planning, transportation, keeping rates competitive, relationship of the Aeronautics Board to the Board of Commissioners as a board of control versus being a department or an authority, parking, and the size of the Aeronautics Board.
The Committee and Director of Aeronautics Jim Koslosky reviewed the performance measurements for the Department of Aeronautics, a copy of which is on file in the Board of Commissioner's Office.
Committee members complimented Aeronautics Board Chair VanLaar, Mr. Koslosky and staff for the thoroughness of their reports and for the many positive outcomes at the airport.
There being no further business for discussion, Chair Kooiman adjourned the meeting at 9:40 a.m.