Last evening I was scanning Twitter for any interesting open government developments when I saw a tweet from a WDRB reporter, Jason Riley.

"Day 39

Hello @KYprosecutor,

Thanks much for responding to my open records request. I know you are legally required to, but it still seems like a step in the right direction for us. My reading of it is that this case is still pending? Yes? No?

Thanks!"

Riley has been on a 39 day quest — documented on Twitter daily as an " information held hostage" drama — to ascertain the status of a case relating to a Louisville public defender from the Kenton County Commonwealth's Attorney. Riley subsequently filed an open records request for records relating to the Commonwealth's Attorney's appointment as special prosecutor in the case.

Riley also requested the Commonwealth's Attorney's personnel file and records relating to several other subjects, including the US Department of Justice's notification to the Commonwealth's Attorney that his office was ineligible for participation in a federal seizure and asset forfeiture program.

On the 39th day, the Commonwealth's Attorney denied Riley's request, advancing several arguments in support of its position.

With respect to the letter notifying the Commonwealth's Attorney of its ineligibility for the asset forfeiture program, he maintained that his office no longer had the communication "because all communications about this subject matter were made by email and Kentucky records retention policy calls for emails to be purged after two years. All communications which would have pertained to the subject matter were more than two years old *and no longer exist.*"

Skeptical of this response, and knowing that the format of the record (e-mail) had absolutely nothing to do with how long it had to be retained, I tweeted Riley:

"As described, some of this correspondence would almost certainly constitute official correspondence (a letter from a federal agency notifying a local official that his participation in a federal program is terminated, for example). Official correspondence is a permanent record."

Additionally, I explained that confirmation of proper records destruction could be obtained from the Kentucky Department for Libraries and Archives, and that if, in fact, the communication from the Department of Justice to the Commonwealth's Attorney was official correspondence, concealment or destruction might result in the imposition of criminal penalties under KRS 61.991(2)(a) and KRS 519.060.

Riley took it from there.

He communicated these legal observations to the Commonwealth's Attorney in slightly less decorous language and quickly reaped the rewards.

Day 40

Hello @KYprosecutor,

So, apparently some of the correspondence you destroyed — feds notifying you they were terminating your office from a program — is 'official correspondence' that is supposed to be kept and destroying such public records is illegal. Have to ask @kyoag"

Today, Riley received the following communication from the Kenton County Commonwealth's Attorney:

"Further search of archived records produced two additional documents that should have been included with the original response to your records request. Please see attached. Although the second document references an appeal of the decision to terminate this office from the Equitable Sharing program, no such appeal was filed. I apologize for the delay."

Attached to the communication were two letters. The first letter is from the US Department of Justice, Criminal Division, Asset Forfeiture and Money Laundering Section.

Dated March 9, 2016, the letter advises the Commonwealth's Attorney that — in the course of a compliance review of his equitable sharing account, several deficiencies were noted and that his office is "an ineligible program participant" and "must return the entire federal equitable sharing balance in is account," totaling $68,382, by overnight courier.

The second letter is from the Kenton County Commonwealth's Attorney to the US Department of Justice.

Dated March 18, 2016, it advises the DOJ that the Commonwealth's Attorney "does not concur with the findings of the Asset Forfeiture and Money Laundering Section's compliance audit," but encloses a check for $67,788 (the discrepancy is not explained). Further, it states that an "appeal of the decision to seize these funds" is forthcoming.

As noted, no appeal was filed.

Why this lengthy narrative?

Because the subsequent discovery of the responsive records in archives suggests a failure to conduct any search whatsoever for these records. The Commonwealth's Attorney initially responded without ascertaining whether he maintained these, and most likely, other requested records. His response was a smokescreen.

This increasingly common practice is cause for grave concern. Upon receipt of an open records request, many agencies make no effort to locate the responsive records but instead deny them based on an unverified belief that "if they exist, they are exempt pursuant to KRS 61.878(1)(...)." Some are even so bold as to frame their response in this manner.

The open records law mandates an adequate search for all records responsive to an open records request, a review of the responsive records located, and production of all nonexempt, or parts of nonexempt, public records.

Any public agency that fails to make a good faith effort to locate records responsive to a request violates the law.

It's especially offensive when an elected official — charged with prosecuting people who violate the law — engages in this conduct.

What is the reward for the Commonwealth's Attorney's highly questionable original response? The embarrassment of having to admit that he did not discharge his statutory duties *and* a new round of open records requests from Riley.

Given the Commonwealth's Attorney's track record, and the belated production of two directly responsive records, this is entirely proper.

Although not an open records question — inasmuch as the law does not require the Commonwealth's Attorney to answer questions, Riley still doesn't know the status of the case involving the Louisville public defender.