July 15, 1996

In re: Timothy J. Henn and Lisa Smith/City of Highland Heights


This matter comes to the Attorney General on appeal from the City of Highland Heights's response to Lisa Smith's June 10, 1996, request to inspect and copy the 1994 comprehensive plan adopted by the city pursuant to Ordinance Number 11-94. On June 13, Ms. Smith was advised that the city could only provide her with the 1988 and 1995 comprehensive plans. Dissatisfied with this response, she and another member of Concerned Citizens of Highland Heights, Timothy J. Henn, appealed the city's response.

In response to this office's June 18, 1996, notification of open records appeal, Steven J. Franzen, city attorney for Highland Heights, advised this office as follows:

In 1994 the City of Highland Heights adopted new goals and policies and made these part of the 1988 comprehensive plan. Thereby the new comprehensive plan, if it could be called that, consisted of the 1988 comprehensive plan along with the new goals and objectives to form the new comprehensive plan. This information has been provided to Mr. Henn. There is nothing more we can give him.

Although the city did not send copies of this letter to Mr. Henn or Ms. Smith, on June 22 Mr. Henn received a second copy of the 1988 comprehensive plan, and a copy of the 1994 “Goals and Policies” adopted by Ordinance 9-94.

Ms. Smith and Mr. Henn express doubt that the city council, mayor, and city attorney “would twice read and pass ordinance 9-94 (goals and policies) . . . , then shortly after ACCIDENTLY [sic] twice read and approve ordinance 11-94 (clearly adopting a comprehensive plan). . . .” They ask that this office direct the city to furnish them with a copy of the 1994 comprehensive plan, “or a letter explaining in detail how such an error could have occurred, and what will be done in the future to control passing other city ordinances.”

As we have so often noted, our role in open records dispute resolution is confined to determining whether a public agency violated provisions of KRS 61.870 to 61.884 in its response to a request for records. KRS 61.880(2)(a). We therefore cannot direct the City of Highland Heights to explain “how an error occurred in the passage of ordinance 11-94.” Nor can we determine if an error occurred. Our analysis is restricted to determining whether the city's response was consistent with the provisions of the Open Records Act. For the reasons set forth below, we conclude that the city's response was largely consistent with the Act.

In his June 21 letter to this office, Mr. Franzen explained that in 1994 the City of Highland Heights readopted the 1988 comprehensive plan along with new goals and objectives. These documents, which have since been furnished to Ms. Smith and Mr. Henn, comprised the 1994 comprehensive plan. KRS 100.197(1) and (2) provide, in part:

(1) . . . The comprehensive plan elements, and their research basis, shall be reviewed from time to time in light of social, economic, technical, and physical advancements or changes. At least once every five (5) years, the commission shall amend or readopt the plan elements. It shall not be necessary to conduct a comprehensive review of the research done at the time of the original adoption pursuant to KRS 100.191, when the commission finds that the original research is still valid. The amendment or readoption shall occur only after a public hearing before the planning commission.

(2) The elements of the comprehensive plan shall be reviewed by the planning commission at least once every five (5) years and amended if necessary. If the goals and objectives statement is proposed to be amended then the proposed amendments shall be submitted to the legislative bodies and fiscal courts in the planning unit for consideration, amendment, and adoption. If the goals and objectives statement is not proposed to be amended, it shall not be necessary to submit it to the legislative bodies and fiscal courts for action.

Given the language of these provisions, it is apparent that no other records exist which satisfy Ms. Smith's request. The City of Highland Heights having made full disclosure of the records requested, we conclude that its response was consistent with the Open Records Act.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.






Distributed to:

Lisa Smith

298 Sunset Drive

Highland Heights KY 41076

Timothy J. Henn

5 Arbor Drive

Highland Heights KY 41076

Steven J. Franzen

City Attorney

City of Highland Heights

319 York Street

Ft. Thomas KY 41071