Jessamine County Attorney Brian Goettl is fighting an opinion issued last month by the Kentucky Office of the Attorney General (OAG) which states the fiscal court violated the Open Records Act.
The county attorney's office filed its appeal Sept. 14 which claims it was not the fiscal court but in fact the OAG that violated the Open Records Act by acting outside its jurisdiction. The appeal also claims the OAG violated the Jessamine County Fiscal Court’s due process rights when issuing its decision in August.
The opinion by the OAG was release Aug. 16 and stated the county attorney and fiscal court were in violation of the open-records law by denying a records request made by former EMS employee Andrew Wood.
The county attorney’s office claims that it never received the request from Wood and that the OAG should have waited to issue a law-binding opinion.
The appeal to overturn the OAG's decision states that Wood is "playing games" with the county and OAG because Wood's request was a way to have the county attorney’s office conduct the discovery for him in a pending lawsuit against the fiscal court, judge-executive Neal Cassity and EMS¿director Jerry Domidion.
Wood’s lawsuit claims his civil rights were violated when he was released from county employment. He allegedly sent an open-records request by fax to Goettl's office on May 24 which sought multiple documents including any records of his employment hearing; emails and memos regarding himself, Tina Griggs and Domidion; and also any disciplinary actions concerning paramedic Christie Weifenbaugh.
Wood claims he was told by Goettl to send his request through his office and that he would deliver it on to the fiscal court. Goettl's office denies that conversation took place, and that Wood's attorney Robert Cowan was "coy" about who he was representing when seeking information. This is when was Cowan was instructed to send requests to the county attorney, the appeal claims. When Wood did not received a response from the county attorney's office about his request he presumed it was a denial and appealed to the OAG on June 4.
The appeal included the fax and its confirmation stamped with time, date and the county attorney's number.
However, the county attorney claims neither his office nor the fiscal court ever received an open-records request and was not aware of it until receiving Wood's appeal from the OAG asking for a response.
Upon receiving notification of the appeal in August, assistant Jessamine County attorney Joseph Allison responded stating not only was Wood making the request to the wrong office but that he had never made contact to follow up and confirm his request had been received.
Allison claims that Wood’s requests are not being made for a legitimate purpose but made out of a desire to avoid the time and expense of discovery in his an ongoing lawsuit against the county. A statement that is reiterated in the county attorney’s argument to reversion the OAG’s opinion.
In August, however, the OAG disagreed stating in its opinion that a request must be evaluated independently of whether a requester is a party to litigation or not, and the Jessamine County Fiscal Court failed to provide clear and convincing evidence that Wood’s request would unreasonably burden the county attorney’s office.
This is the opinion that the county attorney's office is currently looking to overturn with one main argument — the county cannot be in violation if it never received the request.
"It is ridiculous for the Attorney General's Office to publish an opinion finding that the Jessamine County Fiscal violated the Open Records Act in this case," the appeal to the OAG states. "To do so was a violation of the Open Records Act, to exceed the statutory role of the Attorney General's Office, and to violate the due process of right (of the fiscal court)."
The OAG violated the county's right to due process by issuing an opinion that subjects the county to legal liability thus by allowing the OAG's decision to stand it would burden the county with continual, unreasonable requests and strip it of any ability to challenge a request made for the sole purpose of burden, the county attorney’s appeal states.
It's not just the stance that the opinion be overturned but the county's attorney's asked that Wood's "deficient open records request" be completely denied, as well.
The county attorney states that Wood's request is not valid because its office is not the custodian of several of the documents he was seeking and those that are can be made avaliable through discover during Wood's litigation with the fiscal court.
The OAG has not issued a response to the county attorney’s office appeal, and both Wood and Cowan have received a copy and are preparing a response.