AG’s Office: DCPL did not violate Open Records Act when responding to DCC4D request

January 5, 2024 | 12:10 am

Updated January 5, 2024 | 12:56 am

Photo by Josh Kelly

The Daviess County Public Library did not violate the Open Records Act when it provided all responsive records following a request by Daviess County Citizens for Decency (DCC4D) Chairman Jerry Chapman for specific communications between the library director and board members, according to the Kentucky Attorney General’s Office. Chapman claims “the matter is ongoing and unresolved.”

Chapman submitted his open records request to the library on November 10, asking for “All communications including but not limited to emails and texts from and between all current and former DCPL board members, [Library Director] Erin Waller and library staff concerning the Daviess County Citizens for Decency audit, the subsequent book review, relocation of books and proposed changes.”  

According to a decision issued by the AG’s office on December 28, Waller provided 16 emails and 34 messages sent via Microsoft Teams. 

The decision reads: “The Appellant then stated he ‘believe[d]’ there were ‘additional emails between board members’ that had not been provided, including emails from the current board chair to the Director. The Director replied that she had provided the Appellant all responsive records to which she had access, and that she had requested the board members to supply any additional responsive records in their possession. She advised the Appellant that the records she provided were ‘all [she had] been copied on or sent directly.’ This appeal followed.”

According to the decision, once a public agency states affirmatively that it does not possess any additional records, the burden shifts to the requester to present a prima facie case that such records do exist. If the requester establishes such a case, “then the agency may also be called upon to prove that its search was adequate.” 

To support a claim that the agency possesses responsive records that it did not provide, the appellant must produce some evidence that calls into doubt the adequacy of the agency’s search, according to the decision.

“Here, the Appellant claims to ‘know for a fact’ that additional responsive emails exist, but provides no evidence in support of his claim. The bald assertion that records should exist is not sufficient to establish a prima facie case that they do exist,” the decision reads. “Because the Library provided all responsive records it possesses, it did not violate the Act.”

According to the AG’s office, Chapman may appeal the decision by initiating an action in circuit court within 30 days from the date of the decision. 

Chapman told Owensboro Times via email that the matter “is ongoing and unresolved.” 

He wrote, “Ms. Waller claims ‘she had requested the board members to supply any additional responsive records in their possession.’ It’s important to note, she does not claim they don’t exist, because she would then be lying. The board refused to comply with a legal FOIA Request and non-compliance by a taxpayer-funded agency comes with consequences. They do exist, and even if they’ve been destroyed, nothing disappears completely from the internet.”

OT asked Chapman to elaborate on why he believed the matter is ongoing and why he still claims the board “refused to comply with a legal FOIA Request” while the AG decision says “it did not violate the Act.” We also asked if he was appealing the decision in circuit court. Lastly, we asked if he has provided any evidence to the AG’s office to support his claim of additional records since the decision was issued, and if he would share any such evidence with OT.

Chapman’s email response to those questions was: “I have seen and read the emails. I do not have possession of them. We will do what we need to do to shine the light of truth.”

Asked to comment on the AG’s decision, Waller wrote via email: “Just to reiterate what I said in response to the appeal. To the best of my knowledge, we provided everything we had that was appropriate to the request. I have not been informed of what the email Mr. Chapman is referencing is about specifically, but I provided everything I have access to.”

Asked about Chapman’s response to OT, Waller said: “I have no comment, because I don’t know what he is referring to.”

Asked about Waller’s response to OT, Chapman said: “She provided no emails from or between board members. Why does she not have access to those? Does she expect people to believe board members weren’t talking? Two of them called us the night of the August board meeting, aghast.”

In mid-August, DCC4D “audited” books in the teen and juvenile sections of the library. That saga has spanned several months and included plenty of feedback from the public during DCPL meetings. In October, the library made a couple of policy changes but kept materials where they were. Click here for more information on how everything unfolded.

January 5, 2024 | 12:10 am

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