, Corbin, KY

May 9, 2013

Whitley Jailer fails to comply with state open records law

The Times-Tribune


Open Records Ruling.pdf

By Becky Killian / Editor

The Kentucky State Attorney’s Office has ruled that Whitley County Jailer Ken Mobley failed to comply with the state’s open records law in his response to a request from Whitley County Sheriff Colan Harrell.

The ruling indicates in a letter dated March 28 Harrell requested “records relating to lawsuits against the Whitley County Detention Center from September 2005 to the present, including subpoenas, records reflecting an intent to sue, correspondence exchanged by the jailer and his employees and the Kentucky Association of Counties or other agency counsel, and video recordings relating to ‘alleged wrongdoing or injuries to inmates.’”

In his April 1 response, Mobley wrote that “all” documents had been turned over to KACo and attorneys so he had no documents that he could give to Harrell.

Harrell appealed the matter to the Attorney General’s Office.

The ruling cites a prior open records appeal in rejecting Mobley’s claim. In that prior ruling, it was determined “[i]t is the nature and purpose of the document, not the place where it is kept, that determines its status as a public record.” In the prior case, which involved a city, the attorney general had ruled the city must review or instruct its attorney to review a request to determine whether or not the requested records could be provided.

“The same duties rest with the Whitley County Jailer,” the ruling states. “Neither he nor any other public official or agency can frustrate access to public records ‘by allowing them to indefinitely reside in the custody of a private agent’ or, in the jailer’s case, KACo.”

The state found that Mobley’s response “entirely failed to address” the existence of those items requested by Harrell.

“If they exist, some of these records may reside in the custody of the jailer’s counsel; others, though they reside in the jailer’s custody, may be exempt from public inspection under one or more exceptions to the Open Records Act. The jailer’s silence compels us to speculate. The Open Records Law leaves no room for speculation.”

After stating Mobley’s response did not comply with the requirements of the act, the ruling directs Mobley to, “immediately supplement his response to Mr. Harrell’s request by advising him whether the remaining requested records exist and when he may inspect, or obtain copies of, them.” It further directs Mobley to write to Harrell and describe any records withheld as well as cite the law that allows him to withhold those records.

“Until he has done so, the jailer’s duties under the Open Records Law will not be fully discharged,” the ruling states.