AG: Burgin violated Open Records Act, city’s response ‘troubling’

Published 9:44 am Tuesday, March 7, 2017

BURGIN — The City of Burgin violated Kentucky’s Open Records Act by failing to respond within three days to a request from former Police Chief Jim Caldwell, the Kentucky Attorney General’s Office has ruled.

“The city’s response to Mr. Caldwell’s open records request is troubling, as it fails to recognize the city’s obligation as a public agency to comply with the requirements of (the Open Records) Act,” the ruling reads.

Caldwell, who was terminated from his position as Burgin police chief on Jan. 12, filed a wide-ranging open records request for at least 15 items on Jan. 13, according to the ruling. Under state law, public agencies must respond to such requests within three business days by either providing access to the records or citing exemptions in the law that allow the records to be withheld. 

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Burgin didn’t respond to Caldwell’s request until Jan. 26 — two weeks after the request had been filed, according to the ruling.

Caldwell appealed to Attorney General Andy Beshear, claiming that on five of the items he requested, the city failed to provide all responsive records.

Beshear’s office rejected most of Caldwell’s arguments over the five items. On three of the items, the ruling found there was either was no violation of the Open Records Act or there wasn’t enough evidence to prove a violation. The ruling did find the city “more likely than not” failed to provide two grievance documents; and committed a “procedural violation” by claiming to have provided records that in fact do not exist.

The ruling took more of an issue with the city’s response to Caldwell’s request. According to the ruling, the city’s response to Caldwell’s appeal included the following statement:

“There are only two of us clerks working in city hall and we are paid to work 22 hours per week each. Some of the regular work is time-sensitive, such as paying bills, making tax payments, sending out quarterlies, W-2’s, 1099’s, etc. When James Caldwell came to check on his request, I explained this to him and said I would get to his request as soon as I could.”

The ruling notes that state law requires a response to all open records requests within three business days; it went on to call the city’s response “troubling.”

“As the city’s response to the request was six business days beyond the three days statutorily allowed, that response was a violation,” the ruling reads.

Burgin City Hall was not open Monday. A call to Hensley was not immediately returned.

In May 2016, Caldwell was injured and became temporarily unable to work. In September, Caldwell said he received medical clearance to return to work, but Hensley decided the city needed a separate physical conducted.

While Caldwell and Hensley were going back and forth over whether Caldwell could return to work, Caldwell was also running for a seat on Burgin City Council, which he won handily, receiving the most votes of all the candidates.

But Caldwell resigned his seat in December, believing he would be resuming his job duties as police chief. On Jan. 12, Hensley terminated Caldwell — allegedly for insubordination.

Caldwell responded by filing his open records request, as well as a grievance with the city.

This is the second time in less than a year that the Kentucky Attorney General has ruled Burgin violated the Open Records Act. In a ruling issued July 25, 2016, the attorney general found that Burgin committed three violations by denying requests for documents improperly. In that case, Caldwell’s brother, David Caldwell, had requested city financial records; meeting minutes and an audio recording; documents concerning an investigation by the Mercer County Ethics Boards; and documents concerning an incident where “a bullet struck a residence.”

“The city’s response consisted of handwritten notes on a copy of Mr. (David) Caldwell’s request,” the ruling in that earlier case stated. “… This is an inadequate response.”