The public is not alone in utilizing public records laws to access agency records.

It is not uncommon for a public official who serves an agency to utilize the law.

There are several reasons why an official may elect to make a public records request. The most common, of course, is infighting within the agency and the requester/official's belief that critical records are being withheld.

As an assistant attorney general, I occasionally suggested to an official who was unable to access agency records that he or she file a written open records request.

As strange as this may sound, I believed there was a value to "formalizing" the process if the official was being stonewalled. By filing a written request, the requester/official triggered the agency's statutory duty to respond in three days, and produce the records, or cite the legal authority justifying nondisclosure.

And, if the agency continued to stonewall, the official preserved the right to appeal to the attorney general or the courts. A copy of the written open records request is required to file an open records appeal.

(Bonus: KRS 61.878(5) encourages public agency "sharing" of otherwise exempt records — a "state or local government officer" is a "public agency" for open records purposes — "when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate governmental function." Of course, this provision has little value in cases of public official infighting.)

The story below suggests that Kentucky is not alone in this unfortunate but necessary practice. Public agency secrecy occasionally extends to the officials who serve the agency.

By coincidence, a Kentucky "case in point" appeared in the newsfeed yesterday. This one, however, was not a textbook example of a successful resolution except, perhaps, in the minds of the parties.

The News Democrat Leader reports that an open records dispute between former Logan County magistrate Dickie Carter and Logan County jailer Phil Gregory has at long last been resolved.

https://newsdemocratleader.com/Content/Default/Local-News-Stories/Artic…

In September 2017, then magistrate Carter filed a request for jail commissary records for a two year period. He made clear that he did not want copies of the records if the copying fees exceeded $20.

(Tip: Its always a good idea to include language to this effect if you are requesting copies of records.)

Gregory responded several days later by having "deputies wheel in three dollies holding 31,699 pages of documents, turning them and a bill for $4,663 over to" Carter.

Carter appealed the jailer's actions to the Office of the Attorney General. In November 2017 the attorney general issued a decision stating that the jailer violated the open records law by failing to "make a complete and timely disposition of the request" and subverted the intent of the law by imposing excessive copying fees.

https://ag.ky.gov/orom/2017/17ORD244.doc

The Logan County Attorney appealed the OAG's decision on behalf of the jailer to the circuit court, and the court affirmed the decision in 2018.

But on May 21, 2019, the circuit court reversed and vacated the order. The article offers no explanation for the court's action.

Both the jailer and the former magistrate have declared victory.

As noted, this is not a textbook example of effective use of the open records law (much less an effective use of the attorney general's and the court's resources). But where the open records law is not "weaponized" by one or both parties, it provides a useful tool for public officials as well as the public.