, Corbin, KY

May 21, 2013

Jailer ‘subverted’ Open Records Act

Appeal by Whitley Sheriff gets response from state attorney general’s office

The Times-Tribune

CORBIN — By John L. Ross / Staff Writer

An open records appeal by Whitley County Sheriff Colan Harrell got a response from the state attorney general’s office dated May 15.

And it states Whitley County Jailer Ken Mobley “subverted” Kentucky’s Open Records Act in response to a request made by the sheriff earlier this year.

Kentucky Attorney General Jack Conway and Assistant Attorney General Amye L. Bensenhaver sent Harrell, Mobley, County Attorney Bob Hammons and Barbara Teague their response to Harrell’s open records appeal.

“Whitley County Jailer (Mobley) subverted (the) intent of (the) Open Records Act by misdirecting records applicant to (the) county coroner to access detention center records transferred to (the) coroner for inmate death investigations,” the response summarizes. “(This) appeal raises records management issues that are referred to (the) Kentucky Department for Libraries and Archives…for further inquiry.”

In a March 28 letter, Harrell requested records concerning lawsuits against the county’s detention center from September 2005 “to the present, including subpoenas, records reflecting 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 Conway’s May 15 response, it states Mobley “denied custody of the records advising Mr. Harrell that he had ‘no records of any inmates (who) have died while incarcerated at the Whitley County Detention Center…[and] no videos or documentation of any deputy jailers relating to assaults or brutality.’”

The response also states Mobley directed Harrell to contact County Coroner Andy Croley.

“With reference to records relating to inmate deaths, the jailer referred Mr. Harrell to the Whitley County Coroner who ‘investigated each death’ and to whom all records ‘were turned over,’” states the attorney general’s response. “In so doing, the jailer misdirected the applicant, Mr. Harrell, thus subverting the intent of the (Open Records) Act…”

The response cites previous cases, including a situation in Cumberland concerning time sheets. That case found “public agencies are required to manage and maintain their records according to the requirements of these statutes (the Open Records Act and the State Archives and Records Act).”

It further states that “the head of each state and local agency (is) [to] establish and maintain an active, continuing program for the economical and efficient management of the records of the agency.”

It adds that state and local agencies must keep records.

“Public agencies ‘cannot disclaim custody and control of (their) records, and must timely honor a request for non-exempt records’” by either keeping the original, making copies or retaining access to records for open records requests.

The response further states that since Mobley directed Harrell to the coroner for those requested records “raises serious records management issues.”

“Clearly, Mr. Harrell was entitled to request records relating to deaths at the Detention Center that were investigated by the coroner, and that were ‘prepared, owned, used, in the possession of, or retained by’ the coroner, from the coroner,” Conway states in his response. “This did not, however, relieve the jailer of his duty to produce Detention Center records.

“The records identified in…Harrell’s request belong to the Whitley County Detention Center, and, as custodian and trustee, the current jailer ‘is responsible for establishing and maintaining an active, continuing program for the management of the records of the agency he serves’…in order ‘to provide accountability of government activities.’”

The letter states it is “incumbent” on Mobley to retrieve the records held by the coroner’s office and disclose the non-exempt records to Harrell.

Further inquiry is expected, according to the letter, which states this case has been sent to the state’s Department for Libraries and Archives.

This decision may also be appealed, according to Conway’s response.