Kentucky’s Office of the Attorney General has found that the City of Somerset violated the Open Records Act by not responding to a request from the Kentucky Democratic Party (KDP) in the time allotted by law.
While Somerset City Attorney John Adams admits that the city missed the deadline for responding to the request by a few days, he also noted that the request was politically motivated.
The Attorney General’s decision was made on January 5, the same day that Keck traveled to Frankfort to officially file as a Republican candidate for governor.
The KDP – the entity which filed the complaint to begin with – noted on its social media that Attorney General Daniel Cameron is also a Republican candidate for governor.
The KDP filed the open records request on November 21, submitting a total of six separate requests according to the Attorney General’s report.
City Attorney Adams pointed out that this was also the day Keck had planned in advance to announce his gubernatorial campaign.
“The requests were emailed approximately an hour and half before the scheduled and well-reported event where Alan Keck publicly announced [his campaign] for Governor at the Virginia Theatre,” Adams said. “Arguably, the timing and the filing of the ORR was an effort to ‘freeze the kicker,’ to use the sports analogy.”
Furthermore, Adams said the requests were made the week of Thanksgiving, when many administrators were out of the office on holiday and departments were short-staffed.
The Attorney General’s finding was that the city did not notify the KDP members of its decision on complying with the open records request within the five business days as required by law.
“That is my fault,” Adams said. “I had emailed the requesters within in three days and told them that I would get back to them when I could give them an estimate on how long it would take to answer the requests. I needed to speak with others at the City to assess how long the request would take…
“By the time I had the information for the requesting parties, the Kentucky Democratic Party had filed the appeal,” Adams continued. “If my recollection is correct, the appeal was filed on the ninth or tenth day of the request. I answered the appeal with most of the records sought, explanations of what records did not exist, and explanations when the remaining records could be expected. Based upon my experience with prior appeals, I felt my handling of the requests was reasonable because of my initial response to the requestors being within five days. I had hoped the AG’s office would have summarily closed the appeal as the City was providing the records.”
However, according to the Attorney General’s report, Adams’ acknowledgment of the request and response that he would “email [the Appellant] next week with a more substantive response” was not substantial enough to be considered a proper response to the open records request in the required time.
Kentucky law states that the recipient of the open records request must notify the person requesting information within five days of the receipt of a request and whether they will comply with the request or, if denying the request, explain why they are refusing to comply.
“Thus, the City’s responses failed to comply with KRS 61.880(1), and the City issued no other response within five business days of receiving the request. Accordingly, the City violated the Act when it did not fully respond to the Appellant’s request within five business days,” the Attorney General’s Office stated.
The report noted that Somerset did provided 234 records to the KDP in response to the request.
The Attorney General’s note also said that the requests from the KDP “spanned 19 different categories of records, including: emails between five individuals; the personnel files, timesheets, and leave requests of six individuals; all records related to three identified organizations; all records related to two named individuals; all speeches or other writings from a named individual; a copy of that named individual’s financial and ethics disclosures; and all lawsuits or complaints filed against the City since 2018.”
The city shared the open requests with the Commonwealth Journal, which included items such as all contracts for rental of the Virginia, all copies of speeches, op-eds or other writings by Keck, and “records of emails or other communications to or from Alan Keck and [his wife] Tiffany Keck.”
It also requested “copies of any complaint or lawsuit filed against the City of Somerset from 2018 to present.”
Part of those records would predate Keck taking office as mayor, since he was elected to the position in November 2018 and wasn’t sworn in until January 2019.
Adams said that filling the request came at the expense of Somerset’s taxpayers. “I fully support and believe in the purpose of the Kentucky Open Records Law. However this political use of the law to play political gotcha is an abuse of the taxpayers,” Adams said.
“The first fishing expedition ... cost the City of Somerset hundreds of dollars and time to pull the records together. We are currently dealing with a second request which will cost the City taxpayers several hundred more dollars in time to prepare responses to these politically motivated ORRs. By and large the City, or any other Public Agency, cannot charge for the research costs of these fishing expeditions under the Open Records Law.”
He added that he is considering asking lawmakers to create legislation to address that issue, where “public agencies like the City of Somerset can appeal the filing a political motivated, non-specific request for records which are abusing to the taxpayer. The legislation would have narrowly crafted guidelines whereby the AG can protect the taxpayer by reasonably directing the public agency what it must provide and at what cost to the requestor.
“I do not want to weaken the Open Records Law, I want to prevent its current abuse by the Kentucky Democratic Party and its officers.”