Glasgow Daily Times, Glasgow, KY

August 16, 2012

8:15 MORNING UPDATE: Feds file statement of interest in Ober case

By AMANDA LOVIZA VICKERY
Glasgow Daily Times

GLASGOW —

Six days after an open records appeals trial, two attorneys with the U.S. Department of Justice's Civil Rights Division filed a "statement of interest" in the Barren Circuit Court case between the Barren County Fiscal Court and the Glasgow Daily Times. Judge Phil Patton was expected to make a ruling on the case by the end of this week.

"The United States is currently conducting an active, federal, criminal investigation into allegations of civil rights violations that occurred at the [Barren County Detention Center]," wrote trial attorneys Nicole Lee Ndumele and Tona Boyd.

The documents under scrutiny in the open records case are notes and interview recordings, referred to throughout the open records debate as private investigator Mike Ober's "full report" on the investigation he conducted into the BCDC earlier in 2012. While Ober told the fiscal court and the circuit court that he worked with the Federal Bureau of Investigation during his examination of the Barren County jail, the FBI previously declined to state whether it was conducting an active investigation.

Some of the information contained in Ober's records relate "directly to federal civil rights crimes alleged to have occurred" at the jail, Ndumele and Boyd wrote.

"We believe that the release of this information would significantly jeopardize our ongoing federal criminal investigation," the statement of interest said.

The court document cited an ongoing criminal investigation exemption based on Kentucky Revised Statute "61.868(h)," but no such KRS is found on the Kentucky Legislative Research Committee website. The KRS that addresses ongoing investigations is KRS 61.878(h), and it says that "records of law enforcement agencies or agencies involved in administrative adjudication" are exempt from open records law "if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication."

It was argued during the trial that Ober's investigation does not fall under that category because not only is his investigation closed, but Ober is not a law enforcement officer nor an adjudicator for the county.

Beyond arguing an ongoing investigation exemption, the Department of Justice attorneys stated that if Barren Circuit Court releases Ober's documents, the DOJ "requests the opportunity to inspect and redact the documents, so as to protect the identity of sources and remove information that relates to our federal criminal investigation."

The Glasgow Daily Times' attorney and Barren County Attorney Jeff Sharp agreed during trial Aug. 9 that Ober's records are open records. Sharp expressed concern over privacy of witnesses and stated that he wanted the attorney general's ruling that the county violated open records law to be overturned.

The statement of interest was faxed to Barren Circuit Court and the parties in the case after 5 p.m. Wednesday.

Patton has possession of all of Ober's documents and recordings and he will still file a ruling whether the documents should be released to the Daily Times, and if they should be redacted before they are released.