, Corbin, KY

May 23, 2013

Jailer says he tried to do the right thing

The Times-Tribune

CORBIN — By John L. Ross, Staff Writer

Whitley County Jailer Ken Mobley said he tried to do the right thing concerning an open records request made by Whitley County Sheriff Colan Harrell last month — but that’s not going to stop the sheriff from contacting the Attorney General’s office again today.

“I don’t know — I never had (an open records request) before,” he said.

The Kentucky attorney general’s office rendered a decision about an appeal made by Harrell concerning records requested from the jail.

That decision states that Mobley “subverted” Kentucky’s Open Records Act in response to a request made by the sheriff earlier this year.

Harrell explained that he made the request as a private citizen, not in his official capacity as sheriff.

Mobley explained that he sent a certified letter May 10 to the sheriff at his home residence. The letter states, “This letter is in response to your open records request. I have been in touch with my attorney Mr. Jason Williams trying to arrange a date and time that I can make what records I have available for your inspection. This date and time is set for May 17th at 10:00 a.m. at the Whitley County Court Hoiuse, Jury Room. All records I have will be made available, except for Attorney Client correspondence and any pending litigation.”

Copies of this letter were also sent to Amye Bensenhaver with the state attorney general’s office, Whitley County Attorney Bob Hammons and Whitley County Judge/Executive Pat White Jr.

Mobley said the post office attempted to deliver the letter on May 11 and 12, however, the certified mail was not retrieved until three days after the arranged meeting date at the court house.

“I got that to him 10 days ahead of time to review those records — and he (Harrell) never showed up,” Mobley said.

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.’”

That response also included the opportunity for either party involved in this open records request to appeal this decision again.

Mobley was not clear whether he’ll go further with this request and appeal.

“I just don’t know where we go from here,” he said.

Mobley added that he’s worked with Williams during this request and appeal, and that Williams was an attorney with the Kentucky Association of Counties (KACo).

He explained that Williams was “the same (representing) attorney” for the sheriff and the jail, and that he figured those records could be provided to Harrell through Williams. He then learned of the attorney general’s ruling, so that’s when the certified letter was sent to Harrell.

“(I) had all the records available in one box for him to review,” Mobley said. “And (Harrell) never even showed up.”

He reiterated that this was the first open records request he had ever received.

“It’s not that I don’t want to comply with it,” he said. “I’ve got all of (those records) together.”

Harrell agreed he received the letter after the May 17 meeting date, explaining that while he checks mail daily, the notice of the letter was missed.

Harrell has the envelope the letter was delivered in, and it shows the first notice was left in the mailbox on May 11, the second notice on May 17, and was returned on May 26.

But Harrell added that his open records request “was mailed weeks and weeks ago” and he still has not received the requested documents.

“This has been all blown out of proportion,” Harrell said, adding that Mobley appealed the request initially with “a halfway typed, crudely written letter.”

“This is a simple request — simple,” Harrell said. “But it’s just been blown all out of proportion. Why not just fill (the request) and get it over with?”

Usually an open records request requires the person requesting the records to either receive requested documents within three days or a reason as to why more time is needed. Has the sheriff received the documents he requested in April from the jailer? “I still have yet to receive any of the requested information,” Harrell said.

Harrell added that he received “no call, no email, nothing to remind or inform me about the records being available at the court house that day.”

He added that he plans to contact the attorney general’s office because “I’m still trying to get those records.”

The decision dated May 15 states that 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.”

“(This) appeal raises records management issues that are referred to (the) Kentucky Department for Libraries and Archives…for further inquiry.”

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…”

Further, the decision contends agencies must maintain their own 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.”

Further inquiry is expected, according to the letter.