Police must prove “actual harm” before refusing records requests

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

This ruling contradicts what the Kentucky Attorney General’s Office has recommended in hundreds of cases since 1979, when then-Attorney General Robert F. Stephens issued a lawsuit Open file opinion stating this – based on State law – Police Department records in certain cases “may be kept confidential while the case is pending.”

However, in its ruling, the Supreme Court noted that the Attorney General’s opinions – although they can be very persuasive and carry “great weight” – are not legally binding on the courts. The Kentucky Supreme Court, contradicting the advice of several state attorneys general over the past few decades, ruled that an impending or pending criminal prosecution alone is not enough to prevent disclosure of records.

Amye Bensenhaver, co-director of the Kentucky Open Government Coalition, appealed to the Kentucky Supreme Court Verdict a “monumentally important opinion”.

“What we have had for nearly five decades is law enforcement that has a presumption against openness. “Their assumption is that there is nothing open during an ongoing investigation,” Bensenhaver said.

“Not only [the Supreme Court opinion] reject fallacious reasoning, but also correctly assign the burden of proof to the authority and be informed by the legislature’s statement of intent that a free and open examination of public records is in the public interest and that there are exceptions to the open records law must be strictly interpreted. “

Kentucky Open Records ActThe law, which went into effect in 1976, states that all public records must be accessible for inspection by any resident of the Bluegrass State. However, there are several exceptions, including the so-called “law enforcement exemption”.

This condition allows agencies to withhold records if they reveal the identities of confidential informants or if “premature disclosure of information for use in a future law enforcement action” would harm the agency. However, it also requires that records covered by this exception be released after a law enforcement action – such as a criminal prosecution – is completed or a decision has been made not to pursue a criminal prosecution.

However, there is another state law – 17,150 KRS(2) – Declares that intelligence and investigative reports maintained by police departments are subject to public inspection “when the prosecution has been completed or a decision has been made not to prosecute.”

It was this law that state attorneys general – including the offices of former state attorneys general – enacted Daniel Cameron, Andy Beshear, Jack Conway And Greg Stumbo – have cited in previous decisions on open files that public access to some files was denied due to ongoing criminal investigations.

This recent ruling from the Kentucky Supreme Court – written by Justice Michelle Keller – suggests that the same General Assembly has declared “free and open examination of public records.” [are] “In the public interest” would not hide a major gap in this law in any other law.

“The General Assembly does not hide elephants in mouse holes,” the court opinion states.

Keller also wrote that the criminal prosecution exception in the Open Records Act should govern the release of police records before criminal prosecutions are completed. Meanwhile, she wrote that KRS 17.150(2) should be used to order the release of certain “intelligence and investigative reports” after prosecution.

The matter came to the Kentucky Supreme Court through a case in connection with a 2020 disclosure request by the Louisville Courier-Journal. The news outlet requested documents related to one from the Shively Police Department – which was denied deadly high-speed pursuit. As a result of the ruling, the Supreme Court remanded the case to the Jefferson Circuit Court to allow SPD to present justifications under the Open Records Act’s law enforcement exceptions for withholding records requested by the Courier-Journal.

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

Hannah Saad is deputy news director for WKMS. Originally from Michigan, Hannah earned her bachelor’s degree in news media from the University of Alabama. Before joining WKMS in March 2023, Hannah was a news reporter at The Paducah Sun.