AG rules Burgin again failed to respond to records request

Published 8:01 am Wednesday, March 15, 2017

The City of Burgin did not violate the Open Records Act by failing to provide records that do not exist, but it did fail to respond to “communication that identified itself as a ‘freedom of information request,’” according to a new ruling from the Kentucky Attorney General. It’s the third time in less than a year that the AG has ruled Burgin failed to respond to records requests appropriately.

The newest AG ruling issued March 6 concerns an open records request made by Burgin City Councilman David Caldwell on Jan. 18.

According to the AG ruling, Caldwell’s request included the following text:

“I have had a chance to review the November and December financial reports and I have some significant concerns … Please correct them to include all expenditures in the proper categories on the profit and loss statements. … Please treat this request as if it is a freedom of information request so that we can be assured a timely response.”

After receiving no response from the city, Caldwell appealed to the AG on Feb. 7.

The AG rejected Caldwell’s claim that the city had failed to provide records, but also found that the city should have responded to Caldwell’s letter within three days as the law requires.

“It is clear from the face of Mr. Caldwell’s letter that he is not requesting inspection or copies of existing public records, but rather is asking the city clerk to prepare a new version of the November and December financial reports,” the ruling reads. “A public agency cannot afford a requester access to a record that has not yet been created.”

Further, the AG noted, the city is “not obligated to compile a list or create a record to satisfy an open records request.”

“Nevertheless, the city committed a procedural violation of (state law) by failing to respond to a communication that identified itself as a ‘freedom of information request,’ even though the proper terminology would have been ‘open records,’” the ruling reads.

Less than a week prior to this new ruling, the AG ruled on Feb. 28 that Burgin had violated the Open Records Act by failing to respond in a timely manner to a records request from Jim Caldwell, the city’s former police chief and brother of Councilman David Caldwell.

In that ruling, the AG stated it found the city’s delay in responding — and claim that it didn’t have to respond quickly if city employees were busy — as “troubling.”

In a July 25, 2016, ruling, the AG found that Burgin violated the Open Records Act by responding to a request from David Caldwell, who was not yet a city councilman at the time, with “handwritten notes on a copy of Mr. Caldwell’s request.”

“This is an inadequate response,” the AG wrote at the time.

Former Police Chief Jim Caldwell, who has filed a grievance with the city over his termination on Jan. 12, said he has another appeal open with the AG concerning more open records requests he has made this year that were not responded to in a timely fashion. He said he is seeking his personnel file from the city because it contains documents he needs to seek employment elsewhere.

Burgin Mayor George Hensley said earlier this month he believes the city has “not really violated any laws as far as open records requests” and maintained the city’s position that it can delay responses to open records requests when city employees have other urgent matters to attend to.

The Kentucky Open Records Act does allow for delays in viewing records in some specific instances where the records are not readily available, but nothing in the act allows for a public agency to delay in responding to a request or otherwise avoid the requirement for a response within three business days.