Law Enforcement Exemptions Under the Kentucky Open Records Act

The Kentucky Supreme Court's recent decision in Shively Police Department v. Courier Journal, Inc., rendered on Sept. 26, 2024, offers essential insights for city officials and law enforcement agencies regarding the application of certain law enforcement exemptions under the Kentucky Open Records Act.

Case Overview:

On July 27, 2020, the Shively Police Department (SPD) engaged in a high-speed pursuit following a report of a potential domestic violence incident. The chase concluded with the suspect's vehicle colliding with another car, resulting in three fatalities. Afterwards, The Courier Journal requested access to various records related to the incident, including dispatch reports, 911 calls, and dashcam footage. SPD denied these requests, citing the "law enforcement exemption" under KRS 61.878(1)(h), asserting that the records pertained to an ongoing criminal investigation and their release would harm the agency's investigative efforts.

The case originated in the Jefferson Circuit Court after The Courier Journal sought an injunction to compel SPD to release the records. The circuit court ruled in favor of SPD, finding that the department had met its burden of proof under the law enforcement exemption and could withhold the records. The Courier Journal appealed, and in November 2022, the Kentucky Court of Appeals reversed the circuit court’s decision. The appellate court found that SPD had not sufficiently demonstrated that the records were exempt from disclosure under the law enforcement exemption or other claimed exemptions.

The Kentucky Supreme Court ruled against SPD, affirming that the department failed to articulate a factual basis which would pose a concrete risk of harm to the agency in the prospective action to sufficiently justify withholding the records. Additionally, the court clarified that SPD could not rely on KRS 17.150(2) to categorically withhold investigative records while the prosecution was ongoing.

Key Takeaways for City Officials:

1. Justification of Exemptions Must Be Concrete: The court emphasized that a broad denial of records is not enough. When citing the law enforcement exemption, agencies must provide factual basis illustrating how the release of records would pose a concrete risk of harm to their investigative or prosecutorial efforts. General concerns about witness statements or grand jury tainting, as claimed by SPD, were deemed insufficient. 
   1. When considering whether to invoke this exemption, ensure that your rationale is clear, detailed, and directly tied to the content of the records. Blanket statements of hypothetical or speculative harm without supporting evidence won’t meet the legal standard. Supporting documentation, like an affidavit, must provide details of concrete harm to the investigation if the records are subject to public disclosure.   
2. KRS 17.150(2) Can’t Be Used Preemptively: SPD also cited KRS 17.150(2), arguing that investigative reports could be categorically withheld until after a prosecution is complete. The Supreme Court rejected this interpretation, stating that the statute applies only after a prosecution is concluded or a decision is made not to prosecute. The court clarified that KRS 17.150(2) pertains to the disclosure of intelligence and investigative reports post-prosecution and does not authorize the categorical withholding of records during an active investigation without demonstrating a concrete risk of harm.  
   1. Contrary to decades long guidance issued by the Office of the Attorney General, this case now finds that KRS 17.150(2) is not a tool for withholding records while a case is active. City officials should apply this exemption only once a prosecution has been resolved or a determination not to prosecute has been made.   
3. There is a Duty to Separate and Produce Nonexempt Material: The court also reviewed the "personal privacy exemption" (KRS 61.878(1)(a)) and determined that SPD didn’t adequately justify withholding all footage on privacy grounds. While the court acknowledged that certain images (like those depicting the deceased) could be sensitive, it held that other portions of the footage should be disclosed. The Open Records Act requires that if any public record contains material which is not excepted, the public agency shall separate the excepted and make the nonexcepted material available for examination. (KRS 61.878(4)).
   1. City officials should be mindful of how privacy exemptions are applied. When invoking this exemption, the focus should be on protecting sensitive content while still separating and producing other non-intrusive records.

Moving forward, cities will need to provide more specific justifications when withholding records under the law enforcement exemption, ensure partial disclosure when possible, and carefully evaluate the applicability of KRS 17.150(2) and privacy concerns when faced with open records requests related to open investigations.