Kentucky Supreme Court weighing whether agencies can withhold records during active cases

What records – if any – should be made available to the public during active criminal investigations or prosecution?

That was the central question that Kentucky Supreme Court justices heard arguments about on Wednesday in a case that could determine whether a police department is allowed to withhold records from a news outlet because of the records’ connections to a criminal investigation.

The case involves records requested by the Louisville Courier-Journal relating to a July 2020 high-speed pursuit involving officers from the Shively Police Department that resulted in the deaths of three people, including a nine-month old girl.

In August of 2020, the Courier-Journal filed five open records requests with the Shively Police Department requesting dispatch reports, 911 calls, communications between dispatch and police officers, dash camera and body camera footage and incident or accident reports related to that pursuit. All of those records requests were denied.

According to court documents, the Shively Police Department denied the Louisville newspaper’s requests because there was an “active criminal case regarding the incident.” The department also cited an exemption to the Kentucky Open Records Act that allows law enforcement agencies to withhold information from public release if disclosing those records would harm the agency by “revealing the identity of informants not otherwise known” or by “premature release of information to be used in a prospective law enforcement action or administrative adjudication.”

However – according to a court briefing – just two days after the deadly pursuit, a Shively Police Department spokesperson said that there was no active internal investigation into the incident, and that the officers involved had followed department policy.

One person involved in the pursuit – Guy Brison – was arrested a few days after the high-speed chase and charged at the time with three counts of murder and multiple counts of wanton endangerment.

Michael Abate, an attorney representing the Courier-Journal, told Kentucky Supreme Court justices that the newspaper still has not received the records it requested four years ago, including camera footage of the high-speed chase.

“We think the public has the right to actually see that video and judge for itself whether the officers behaved responsibly pursuing a fleeing, apparently non-violent individual,” Abate told the court.

Finn Cato, the city attorney for Shively, argued that the case focuses on the “preservation of the integrity of the criminal justice system at large,” and that the Jefferson County community’s police department followed guidance from case law and attorney general opinions in denying those requests.

“We’ve not been trying to do anything willful against the release of these records,” Cato said. “We’ve been following what the law is telling us.”

Cato also argued that if some of the records – such as the 911 call audio or dash cam video from the incident – were released to the public, then it could affect the recollection of what witnesses remember about the incident.

A previous Kentucky Supreme Court decision from a 2013 case found that the law enforcement exemption under the state’s Open Records Act does not create a “blanket exclusion” for all law enforcement records related to open investigations. It also found that police departments’ investigatory files are not “categorically exempt” from disclosure under the Open Records Act.

In addition to the Kentucky Open Records Act, another state statute, adopted in 1976, also addresses the public inspection of intelligence and investigative reports maintained by criminal justice agencies. Under that statute, reports are subject to public inspection “if prosecution is completed or a determination not to prosecute has been made.”

One of the questions that arose during Wednesday’s Supreme Court arguments was whether that statute allows for records to be withheld if prosecution of a case is not over.

A court brief submitted from former Kentucky Attorney General Daniel Cameron’s office states intelligence and investigative reports should not be released to the public before prosecution is completed or declined in order to “protect the integrity of all criminal trials.”

However, in a court filing, the Kentucky Open Government Coalition argued that state law requires agencies to produce requested records to the public when a court case is over, or earlier if its release won’t cause harm.

Chief Justice Laurance VanMeter said the court would try to have an opinion rendered “as soon as possible.”

Opinions can be found through the state supreme court’s website.

This story is republished with permission from WKMS. Read the original.