Burgin mayor: ‘We’ve not really violated’ open records law
Published 12:15 pm Wednesday, March 8, 2017
BURGIN — The mayor of Burgin said Tuesday he doesn’t believe the city violated open records law when it comes to a request from the city’s former police chief.
The city is allowed to delay responses to open records requests when it interferes with “day-to-day activities,” Mayor George Hensley alleged, adding that he thinks many open records requests are being made to intentionally disrupt work at city hall.
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“Everyone’s good about telling us that we violated their rights by not giving (records) to them. But they read part of the law and the rest of the law says if it … interferes with the daily clerk’s work then they don’t have to give it to you right then,” Hensley claimed. “(Filing of) open records requests in my opinion has gotten out of control. Most of it — I’d say 90 percent of it — people are doing it just for meanness to interrupt our daily work.”
The Kentucky Attorney General’s Office ruled Feb. 28 that Burgin violated the Open Records Act when it failed to respond to a request from recently fired police chief Jim Caldwell within the three business days allowed by law.
In defense of the time it took to respond to Caldwell’s request, Burgin told the AG it has limited staff and they don’t always have time to fulfill open records requests while doing the rest of their jobs.
The AG ruling noted that state law requires public agencies to respond to open records requests within three business days. “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 act.”
Hensley said Tuesday that “as far as I’m concerned, we’ve not really violated any laws as far as open records requests.”
Hensley reiterated his claim that the city is legally allowed to delay responses to open records requests if employees are too busy to handle the requests.
“If it interferes with their day-to-day activities … then we can wait” to respond, he said. “Both these women is part-time and we don’t have enough time in a day to do all this work.”
Open records law in Kentucky does allow for delays in viewing of records if they are “in active use, in storage or otherwise unavailable,” but in those cases public agencies are still required to “notify the applicant” within three days.
There is also an exemption in open records law that allows public agencies to refuse requests “if the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency.” However, such a refusal must be “sustained by clear and convincing evidence.”
Kentucky Press Association attorney Jeremy Rogers said based on previous AG rulings, it’s clear a public agency must meet “a fairly high bar” of proof if it wants to refuse a request for intentional disruption.
One such ruling occurred in 2015. The AG found that an open records requester had intentionally attempted to disrupt the essential functions of the Walton-Verona Independent Board of Education through repeated requests for hundreds and thousands of emails that the requester knew would require a large number of staff and hours to process. The requester had also failed to pay for some open records requests in a timely manner and offered to stop making open records requests of the school district if he was paid $500,000.
Hensley said Tuesday that Burgin has gone through two boxes of printer paper since Jan. 1 in fulfilling open records requests.
“Can you imagine how much paper that is?” he said.
Burgin charges the standard fee of 10 cents per page for copies of records, he said.
Caldwell said he hasn’t requested anything from the city except documents he believed he should have been provided prior to his termination. One main document he has requested is his personnel file.
“I’ve actually got another (attorney general) appeal pending. I’m requesting documents I’m allowed to have and they’re not giving them to me — and you’ve got to ask yourself, ‘why?’” Caldwell said. “I’m not asking for anything weird and I’m not asking for anything unusual. I’m just asking for documents that they should have given to me before they fired me.”
Caldwell said in addition to the open records request he filed on Jan. 13, he also filed requests on Jan. 31 and Feb. 7.
The Feb. 28 AG ruling concerns the initial Jan. 13 request only.
Caldwell said he filed an appeal concerning the other two requests on Feb. 20.
Caldwell also filed a grievance with the city after Hensley fired him on Jan. 12. That grievance should have led to a hearing, but that hasn’t happened.
Caldwell said he wants to have the hearing, but he’s been told by the city that the hearing can’t be held until Caldwell has all the documents he wants — documents he’s attempting to get through open records requests.
“How long am I supposed to wait?” Caldwell said. “This isn’t brain surgery — you made the decision to fire me based on documents you were supposed to provide me with. They’ve made allegations of insubordination, but they’ve provided zero proof of insubordination.”
Hensley said he told Caldwell the city would hold the grievance hearing “when he got all the information that he needed.” Hensley said he told Caldwell to let him know when and “we would get together and set a date” but he hasn’t heard back from Caldwell.
Caldwell said he’s unsure what to do next if Burgin continues to ignore the AG ruling.
“Until some state agency comes in and kicks them in the teeth, where are we as citizens stuck at?” he said. “… I guess eventually it’s going to come down to somebody taking them to court and forcing them to do something. Whether that’s going to be me or the attorney general, I don’t know.”
Hensley said Burgin employees and officials are “just trying to do our job” and be efficient with taxpayer funds.
“We can’t open up our city hall just for people that come here and want open records requests. My people are busy,” Hensley said. “… Every day this happens, it’s costing the taxpayers money. If these people don’t quit coming in here to city hall and doing this for meanness, then we’re going to have to raise taxes probably, because we operate on a very, very small budget.”