Kentucky Supreme Court: Police agencies must show ‘actual harm’ before denying records requests

The Kentucky Supreme Court ruled last week that, in order to deny open records requests, police departments must show that releasing the requested documents, images or videos would cause “actual harm” – even during active investigations.

That ruling goes against what the Kentucky Attorney General’s office has advised in hundreds of cases since 1979, when then-Attorney General Robert F. Stephens issued an open records opinion stating that – based on state statute – police department records in particular cases “may be held confidential while the case is pending.”

However, in its ruling, the Supreme Court said that attorney general opinions – while they can be highly persuasive and hold “great weight” – are not legally binding on the courts. Kentucky’s high court went against what multiple attorneys general have advised over the last few decades and ruled that a prospective or pending criminal prosecution alone is not enough to withhold records from disclosure.

Kentucky Open Government Coalition co-director Amye Bensenhaver called the Kentucky Supreme Court’s ruling a “monumentally important opinion.”

“What we have had for, you know, almost five decades is law enforcement agencies who exercise a presumption against openness. Their presumption is nothing is open during a pending investigation,” Bensenhaver said.

“Not only does [the Supreme Court opinion] reject fallacious reasoning, but it also correctly assigns the burden of proof to the agency, and it is informed by the statement of legislative intent that a free and open examination of public records is in the public interest, and that the exceptions to the open records law must be strictly construed.”

Kentucky’s Open Records Act, put into effect in 1976, states that all public records shall be open for inspection by any Bluegrass state resident. However, there are several exceptions, including what’s known as the “law enforcement exemption.”

That stipulation allows agencies to withhold records if they reveal the identities of confidential informants or if the “premature release of information to be used in a prospective law enforcement action” would harm the agency. But, it also requires that records that fall under this exemption be released after law enforcement action – such as a criminal prosecution – is completed or a decision is made not to pursue a law enforcement action.

However, another state statute – KRS 17.150(2) – states that intelligence and investigative reports maintained by police agencies are subject to public inspection “if prosecution is completed or a determination not to prosecute has been made.”

It was that statute that attorneys general – including offices of former attorneys general Daniel Cameron, Andy Beshear, Jack Conway and Greg Stumbo – have cited in previous open records decisions to justify denying public inspection of some records because of ongoing criminal investigations.

This latest Kentucky Supreme Court ruling – authored by Justice Michelle Keller – suggests that the same General Assembly that declared “free and open examination of public records [are] in the public interest” would not hide a large loophole to that act in another statute.

“The General Assembly does not hide elephants in mouseholes,” the court opinion said.

Keller also wrote that the law enforcement exemption in the Open Records Act should govern the release of police records before prosecution has been completed. Meanwhile, she wrote that KRS 17.150(2) should be used to direct the release of certain “intelligence and investigative reports” following prosecution.

The issue came before the Kentucky Supreme Court through a case involving a 2020 open records request by the Louisville Courier-Journal. The news outlet asked for – and was denied – records from the Shively Police Department related to a deadly high-speed pursuit. As a result of the ruling, the high court remanded the case back to the Jefferson Circuit Court to give SPD an opportunity to provide justifications under the Open Records Act’s law enforcement exemptions to withhold records requested by the Courier-Journal.

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