When a high-speed Shively Police Department chase on the Dixie Highway in 2020 ended with the suspect's vehicle striking another car and killing three inside — including a 9-month-old infant — The Courier Journal sought records from the investigation.
Now, almost four years after The Courier Journal sued SPD over its denial to provide the records , the Kentucky Supreme Court has ruled the department's action was in violation of Kentucky’s open records law.
“This is a really important decision,” said Michael Abate, one of the attorneys representing The Courier Journal in the case. “It makes clear that agencies can’t just say ‘you don’t get information because we’re still investigating it’ or ‘there’s some court case that is pending.’ They have to do what the open records act says.”
“The public has the right to know basic facts about ongoing cases before years have elapsed,” he added, calling the decision a "watershed."
Courier Journal Executive Editor and Gannett Midwest Region Editor Mary Irby-Jones also welcomed Thursday's decision.
"This ruling is a victory for transparency and reinforces the importance of the public's right to clear insight into actions and decisions that our local police departments are making that significantly impact our communities," she said. "And while we celebrate this victory, there are still many past and current battles that we will continue to fight to gain access to public records."
Just hours before the 2020 chase, which saw the suspect's pickup truck race to 116 mph in a 35 mph zone, Shively officers were given an order granting them permission to chase stolen vehicles, but were told they still had to evaluate "risk versus reward" when it came to pursuits.
The Courier Journal wanted to examine whether the officers had complied with their department's pursuit policy.
But within 36 minutes of the newspaper’s open records request for 911 calls, video footage, accident reports and other documents related to the crash, the Shively Police Department said it would not provide any records.
“As there is an active criminal case regarding this incident, all of the above request are denied under the following exclusion rule: KRS 61.878 subsection (1)(h),” they wrote, citing a statute that exempts records compiled during an investigation that could harm prospective law enforcement action.
The statute cited by Shively Police allows law enforcement agencies to exempt records “compiled in the process of detecting and investigating” potential statutory violations and crimes “if the disclosure of the information 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, Supreme Court Justice Michelle Keller wrote in the court’s opinion : “SPD’s initial denial letter made no attempt to explain how public inspection of the requested records would harm the agency’s investigative or prosecutorial efforts.”
Later, after the case went to circuit court, SPD Chief Kevin Higdon filed an affidavit saying the records posed a “concrete risk of harm” that could hinder investigation or prosecution.
Those, however, were only “speculative concerns,” Keller wrote, and failed to show how the release of the records to The Courier Journal would cause harm.
Kentucky agencies, including Louisville Metro Police, regularly refuse to provide records by using the same statutory exemption in the Shively case while failing to describe what harm would be caused.
Responding to an inquiry from The Courier Journal, Sgt. Jordan Brown, a spokesperson for SPD, said the department did not have a comment at this time.
As the case made its way through the court system, SPD tried to argue that the records were exempt due to a personal privacy exemption in the open records law, as portions of the video footage depicted deceased victims of the crash.
However, the Supreme Court found The Courier Journal made it “abundantly clear” the newspaper was not interested in footage of the people killed in the crash, but rather footage of the police chase.
Similarly, SPD later argued that another statute — KRS 17.150(2) — also allowed them to deny The Courier Journal’s request.
That statute states that “intelligence and investigative reports” are subject to public inspection if prosecution has been completed or if a decision not to prosecute has been made. It exempts records that would disclose the identity of a confidential informant, violate personal privacy, endanger the lives of law enforcement or if the information could be used in a prospective law enforcement action.
“Despite the many years’ worth of Attorney General opinions interpreting KRS 17.150(2) to allow the categorical nondisclosure of certain law enforcement records before a related prosecution has concluded, this Court interprets the statute to have no bearing on whether public records can be disclosed before a criminal prosecution is completed or a determination not to prosecute has been made,” Keller wrote.
Reach reporter Josh Wood at jwood@courier-journal.com or on X, formerly known as Twitter, at @JWoodJourno .
This article originally appeared on Louisville Courier Journal: 'Watershed' decision: Kentucky Supreme Court says Shively Police violated open records act
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