GLASGOW — An ongoing open records appeal will proceed to trial Thursday after no agreement was reached during a status hearing Wednesday morning on the release of a full investigative report into the Barren County Detention Center.
After a three-month process and two subpoenas, private investigator Michael J. Ober came forward this week to say he never wrote a full report on his jail investigation. Instead of a report, Ober submitted to Judge Phil Patton a thumb drive of investigative notes and recordings. Ober is still required to appear as a witness in the trial that begins Thursday at 9 a.m. in Barren Circuit Court.
The case began in May, after Ober was paid $3,500 by Barren County Fiscal Court to investigate allegations of misconduct at the jail. Ober's contract required that he provide “a written report accurately detailing the results of the investigation,” but at a May 1 meeting, Ober only provided a summary of his report. He told the fiscal court that he had a complete report, but he preferred to give the full report to the Federal Bureau of Investigation instead of the fiscal court.
“I have taken my statements and formulated a report, ultimately summarized it here and presented it to you all,” Ober told the court on May 1. “The FBI, for the most part, is already aware of what I have and I told them obviously I would have to ask my client before I could turn it over.”
The fiscal court voted for Ober to give the report to the FBI, after County Attorney Jeff Sharp said, in response to a question by Magistrate Carl Dickerson, that the full report would not be subject to open records law if the county did not have it.
The Glasgow Daily Times filed an open records request for Ober's full investigative even though the fiscal court did not have possession of it, because the newspaper argued being paid for with taxpayer money made the report an open record no matter where it was kept. The county denied the Daily Times' request, but an appeal to the attorney general resulted in a favorable ruling for the newspaper. The attorney general found that physical location or poor recordkeeping did not determine a document's status as an open record. The fiscal court owns Ober's report, and therefore it is an open record.
The case proceeded to Barren Circuit Court when the fiscal court decided to appeal the AG's ruling. Judge Phil Patton gave County Attorney Jeff Sharp the power to subpoena Ober's investigative report.
When Ober received the subpoena for his “full investigative report,” he responded to Sharp that federal authorities had subpoenaed all the reports and documentation of his investigation on June 6, and Ober had given them everything he had.
“I Turned over all Investigative Materials to the Federal Authorities and no longer maintain the report,” Ober wrote to Sharp on Aug. 1.
Ober's wording changed when he and his computer were both subpoenaed to appear at trial on Aug. 9. Patton received a letter and thumb drive from Ober on Aug. 7. In his letter, Ober stated that he never wrote a full report, but did maintain copies of all his interviews.
Ober went on further in his letter to suggest he did not want to turn over his material to the county because he thought Sharp's involvement was a conflict of interest.
“Mr. Sharp made me aware that he considered it a conflict of interest for me to provide him my complete case file at the time of the completion of my investigative efforts,” Ober wrote. “He explained that he is in a position that he also represents the Jail.”
Sharp said that paragraph in the letter made no sense to him. While he told Ober the county attorney represents the fiscal court and the jail, Sharp said he never told Ober it would be a conflict of interest for him to see an investigative report.
“I told him I represent the jail and the fiscal court, but it wouldn't be a conflict,” Sharp said. “Why would it be a conflict?”
Sharp and Barren County Assistant Attorney Dennis Wilcutt represented the fiscal court at the status conference Wednesday, while Jeremy Rogers, attorney for the Daily Times, joined the conference via telephone. Judge-Executive Davie Greer, Magistrate Carl Dickerson and media personnel also attended.
The status conference was requested by Wilcutt before Patton received Ober's materials. The motion for the conference stated it was to address Ober's refusal to supply his report to the court, issuing another subpoena for Ober's hard drive, requiring Ober to testify and “entertaining the assistance of the attorney general's office in obtaining said report from the FBI and potential sanctions against Mike Ober regarding his license to be a certified private investigator in the state of Kentucky.”
The original reasons for the conference were set aside once Patton received Ober's letter and thumb drive.
Patton gave each attorney a list of what he received from Ober, which included the letter received Aug. 7; Ober's employment contract with the fiscal court; the county's subpoena for the “full report;” a federal subpoena for all records of Ober's jail investigation; and a thumb drive that contains a list of jail employees and their contact information, a letter Ober sent to jail employees, jail policy manuals, a document entitled “Barren Questions,” 18 audio recorded interviews, 14 typed interview notes and a document entitled “Barren County Jail Investigation” dated May 1.
Wilcutt told Patton that he would be calling the FBI before trial to clarify that Patton's list of materials matches what the FBI has.
Sharp told Patton that everything changed when Ober sent his investigative materials to the court, but he went on to say, “If there was a full report, then my position is and has always been that it is a public record.”
Any violation of open records law was not willful, Sharp said, but the attorney general's ruling is confusing if no full report exists. Patton and Rogers agreed that Ober's admission of no report makes the situation more confusing. Ober's testimony under oath at trial may be necessary to clarify the issue, Rogers said.
“The one thing that became clear to me, in reading these interviews, the FBI appears to have been involved in this matter long before the fiscal court decided to hire a private investigator,” Patton said.
Louisville defense attorney Steve Romines arrived at the end of the status conference to represent Ober. Romines' only concern for his client was that the subpoena for Ober's computer not be pursued.
“We'll have to file a motion to quash that,” Romines said. “The computer has privileged information unrelated to this case.”
Romines confirmed that Ober will be present at trial on Thursday, but Romines will not. Romines only needed to make sure the computer was not confiscated, he said, and he expects Ober's involvement in Barren County to be over now that “he did the work, he provided it to the court, he provided it to the FBI.”
“My client is kind of a pawn in this political fight over the jail,” Romines said.
Romines said he was called into the case by another attorney who knew of his roots in the area. Romines has a lot of family in Barren County, including his cousin, Magistrate Carl Dickerson. Romines said Dickerson did not have anything to do with his involvement in the case, but both men confirmed the family connection.
“He's my first cousin,” Dickerson said. “I've known him since he was a little bitty boy.”
Romines will not be involved in the Thursday trial. Ober and Judge-Executive Greer will probably be the only witnesses, Sharp said, so it is not expected to be a long proceeding.