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County named in two open records opinions

By Greg Bird

Two McCreary County agencies were referenced this week in two separate opinions issued by the Kentucky Attorney General’s Office.
In one, the AG confirms the McCreary County Board of Education did not violate open records law because it was unable to produce records that did not exist and is not required to “prove a negative.”
The second opinion concerns the McCreary County Sheriff’s Department. The AG noted the department did not violate open records law by denying a request for information it did not have at the time, but did fail to inform the party seeking the information where it could be found and did not provide justification pertaining to the original denial.
The first opinion, involving the McCreary County Board of Education, concerns an open records request submitted by Darlene Price, host of “Truth or Politics.”
On October 30, of this year, Price requested “any and all records regarding the lawsuit filed on May 27, 2003, by Michael Cash vs. Ray Ball (including) record detailing the amount of any settlement made to Mike Cash.” Price also requested any documents pertaining to a supposed lawsuit filed by Lori Foster (who has since been elected to the Board of Education) and the amount of any settlement obtained by Foster.
Board attorney, Timothy Crawford initially responded to the request stating: “The School District does not have any records responsive to your requests.”
Price appealed to the Attorney General’s office in an effort to obtain the documents. The Attorney General’s office reviewed the complaint and found the Board did not violate the open records request since a search for any documentation was made, but failed to turn up any relevant documents. Crawford informed the investigators that he spoke with Larry Bryson, co-counsel throughout the legal challenge, who informed him that he had shredded the file last year as part of a 10-year retention policy. A further search did turn up the order of dismissal, and a copy of a settlement agreement, which did not contain any cash settlements.
The School District maintains no settlement was ever made to Cash in the case and no documents relating to a settlement for Foster exists.
(The opinion contains a footnote stating Bryson did not indicate whether the documents shredded were his own personal records, or records belonging to the Board. If they were Board records, they should not have been destroyed the opinion states.)
The Attorney General’s opinion states the District made a good-faith effort to satisfy the request, and in failing to find any relevant documents, was proper in indicating to Price that there were no records to issue.
“The McCreary County School District did not violate the Open Records Act because it cannot produce nonexistent records for inspection of copying and is not required to ‘prove a negative’ in order to refute unsubstantiated claim (sic) that additional responsive documents exist.”
The lawsuit referenced in the filing was filed by Michael Cash, then a teacher at McCreary Central, over the omission of his application for the Principal position at the school. Cash contended that then Superintendent of Schools Ray Ball withheld Cash’s application when submitting applicants to the Site Based Decision Making Council for consideration for the position.
Ball’s defense asserted that his obligation was to forward applications he determined were qualified for the position to the SBDM. David Cothran was eventually hired as Principal.
According to Voice records the lawsuit was dismissed on May 19, 2003 with both parties agreeing that the hiring process was completed as required by law. There is no record of any settlement offer being made. However, it does not preclude the possibility that a private settlement was reached outside of the legal filings – but there is no evidence that such an agreement was in place.
Shortly after the dismissal of the suit, Cash filed another lawsuit attempting to block his transfer to the McCreary Academy – a move Cash contended was retribution for his earlier legal challenge. That suit was dismissed as well two months after the initial filing. A settlement was reached in that case, where both parties agreed to drop the suit and Cash would accept the transfer and be named Principal at the Academy.
Subsequently, the Voice could find no record of any lawsuit filed by Foster against the Board.

The second opinion concerns a request for documents from the McCreary County Sheriff’s Department submitted by Key Hensley on September 10.
According to the Attorney General the Sheriff’s Office received a request for a toxicology report taken at the scene of an accident that occurred on April 9 of this year.
The response stated the Sheriff’s Office forwarded the request to County Attorney Conley Chaney’s Office, which returned a letter of opinion stating they would be unable to submit the requested document pending a probable cause determination as it part of an ongoing case.
The Sheriff’s office forwarded the response to Mrs. Hensley, who then appealed.
The AG determined the Sheriff’s Office did not violate the Open Records Act by not issuing a copy of the report since it was no longer in its possession – as it had turned the document to the County Attorney’s Office prior to the request.
However, despite the letter from the County Attorney’s office, the AG determined the Sheriff’s Office did violate two statutes by not informing the requestor where the document could be located, and did not provide a reason for the initial denial of request.
“The Sheriff’s Office failed to meet its burden of proof under KRS 61.878(h) and KRS 61.880(2)(c) and failed to justify withholding responsive records in its possession.
There is no penalty for the Sheriff in this case, but the initial party could pursue action in court if they so desired.

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