Burgin violates Open Records Act for fourth time in a year, AG rules

Published 7:53 am Tuesday, March 28, 2017

For the fourth time in less than a year, the City of Burgin has violated open records law, according to a new ruling from the Kentucky Attorney General’s Office.

In the ruling issued March 22, the AG found that Burgin “failed to issue a timely response to a request for records” and failed “to explain the cause for delay and give a date by which records would be available.”

Former Police Chief Jim Caldwell filed an open records request with the city on Jan. 31, according to the ruling. Caldwell requested four items:

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• “my complete personnel records, including my complete discipline records, training records, original application and supporting documentation;”

• “any video, audio or written statements in the possession of the City of Burgin or any subordinate agency or employee thereof relating to” his personnel record;

• a copy of a letter exempting Burgin from reporting to Kentucky State Police; and

• a copy of a bid “for a mobile data terminal and related equipment.”

According to the ruling, Caldwell received no response from the city and appealed to the AG on Feb. 22, about three weeks after his initial request. Kentucky’s Open Records Act gives agencies three business days to respond to open records requests.

A Burgin city clerk responded to the AG after the appeal was filed, stating that Caldwell had previously been allowed “complete access to his personnel file” and the city “allowed him to copy it.”

“The training records and original application are available at his convenience,” the clerk told the AG.

The AG ruled that if Caldwell was indeed allowed to copy his personnel file, then “most of item one constitutes a request for records already provided in response to a prior request.”

“A public agency is not ‘required to satisfy the identical request a second time in the absence of some justification for resubmitting that request,’” the AG ruling reads. “… Since the city has now made the training records and application available to Mr. Caldwell, we find no substantive violation of the Open Records Act in regard to item one.”

“The failure to issue a response within three business days, however, was a procedural violation,” the ruling continues.

The AG took more of an issue with the Burgin clerk’s response to the second item — “any video, audio or written statements” concerning Caldwell’s personnel record. The clerk told the AG, “if any employee has a video or recording of any kind, it would be their own personal property and would not be part of the records at City Hall,” according to the ruling.

“Not only does the city fail to address ‘written statements’ directly, but it fails to take into account the full scope of the definition of ‘public record,’” the ruling reads.

According to the law, public records are “prepared, owned, used, in the possession of or retained by a public agency.”

“If any video or audio recordings or written statements responsive to the request exist which are ‘prepared, owned, used, in the possession of or retained by’ the City of Burgin, they are subject to the Open Records Act, regardless of where they are located or whose ‘personal property’ they are considered,” the ruling reads. “… Records in the possession of city employees could meet the definition of a ‘public record’ for which the city is accountable. We therefore find the city’s response to item two to be substantively insufficient as well as procedurally untimely.”

On items three and four, the clerk told the AG that “old records in the archives will have to be gone through and this will take some time” and that a clerk “will have to go through the records and look for such a bid.”

“The city’s responses to items three and four of the request amount to simply a statement that the clerk will have to look for the records and it ‘will take some time.’ This is not a sufficient response under the Open Records Act,” the ruling reads. “… While the City of Burgin has advised Mr. Caldwell that some of its records are ‘in the archives,’ he has not been given a detailed explanation of the cause for delay or a date certain on which the records will be available; therefore, the city has not complied with the statute … this portion of the response therefore constitutes an additional procedural violation of the Open Records Act.”

Caldwell was terminated from his position as police chief by Mayor George Hensley on Jan. 12. He has filed a grievance with the city over his termination, alleging the city did not properly explain why he was being fired.

The AG has previously ruled that Burgin violated the Open Records Act in rulings issued on March 6 and Feb. 28 of this year and on July 25, 2016.

The rulings from 2016 and March 6 concern open records requests filed by Caldwell’s brother, David Caldwell, who is now a member of Burgin City Council. The Feb. 28 and most recent rulings concern open records requests from Jim Caldwell made after he was fired.