There is “no question” the Barren County Fiscal Court willfully withheld public records, and it should be accountable for paying legal fees for the Glasgow Daily Times, according to the latest document filed by counsel for the Daily Times in an ongoing open records battle.
The fiscal court has argued throughout the case that it could not provide private investigator Mike Ober’s records on his investigation into the Barren County Detention Center to the Daily Times because the court did not have physical possession of those documents. However, since the fiscal court intentionally voted not to take possession of the documents, and Magistrate Carl Dickerson stated in open court that not accepting the documents prevented them from becoming public records, the fiscal court’s argument “is wrong, and it completely misses the point,” according to attorney Jeremy Rogers for the GDT. The fiscal court chose not to accept an investigative report it paid for with $3,500 of taxpayer money, which put it in violation of open records law when it could not provide access to a public document.
“The undisputed evidence at trial was that the fiscal court made the deliberate decision not to take possession of the records from Mr. Ober,” Rogers wrote in his supporting document. “The fiscal court’s decision was for the express purpose of avoiding its obligation to comply with the Open Records Act. That is exactly the kind of willful action that justifies an award under KRS 61.882(5).”
Barren County Fiscal Court took the Glasgow Daily Times to circuit court over the summer, appealing the Kentucky Attorney General’s ruling that the fiscal court violated open records law when it denied the newspaper’s request for the Ober report. Barren County Circuit Court Judge Phil Patton upheld the attorney general’s decision on Aug. 16, and ruled that the fiscal court must turn over the documents to the newspaper, with or without legal redactions. The fiscal court appealed the ruling to the Kentucky Court of Appeals on Sept. 10.
Along with claiming inability to produce the jail report, the fiscal court has also argued that Ober’s records are not subject to open records law due to privacy and ongoing investigation exemptions. However, it was proven during the Aug. 9 trial that the ongoing investigation exemption only applies for law enforcement, and thus is not a valid exemption in this case.
As to questions about privacy, Rogers said that it is “difficult” to accept that claim when no member of the fiscal court has viewed the records. The fiscal court does not actually know if there is any private information in Ober’s report that would be subject to any legal exemptions.
For the full story, see the print or e-edition of the Glasgow Daily Times.