Another singularly important ruling from the Office of the Attorney General that strips away layers of bureaucratic double talk to expose the truth in Louisville Metro Police Department's Explorer closed sex abuse investigation and records generated in that closed investigation.

https://ag.ky.gov/orom/2019/19-ORD-198.doc

On May 28, Courier Journal reporter Matthew Glowicki requested LMPD's investigative files and was denied access based on the existence of an ongoing federal investigation—but without proof of harm to that investigation from disclosure or citation to any statutory exception.

LMPD instead asserted that all investigative records were turned over to the FBI and that it was prohibited by a memorandum of understanding from disclosing them to Glowicki.

In August, the Courier Journal appealed to the Attorney General.

The agency subsequently identified 9000 records in a hidden computer file that were responsive to Glowicki's request. Officials maintained that the FBI required LMPD to turn those records over to the FBI as well.

LMPD was afforded multiple opportunities to identify the confidentiality statute or regulation that supported the memorandum of understanding but failed to do so. Reliance on a federal statute restricting disclosure of grand jury testimony, the Attorney General observed, was misplaced insofar as it was only binding on the officers who testified.

In the final analysis, the Attorney General held that LMPD could not contract away its duties under the state open records law through a memorandum of understanding.

The decision rightly holds the public agency to its burden of proving that its denial of Glowicki's request was legally defensible, preempting future violation of the open records law by agencies that might otherwise be inclined to contract away their statutory obligations absent supporting legal authority.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23066

Additionally, it raises substantial issues relating to concealment of public records by removal/surrender of those records.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23117

Most importantly, it demonstrates that the Attorney General, acting as an independent decision maker in open records disputes, must remove his "law enforcement hat" and resolve those disputes on the facts and law presented rather than the facts and law that might have been presented or, indeed, the facts and law that he might hope had been presented.

As noted here, and many times in the past, the open records law expressly assigns the burden of proving that denial of an open records request is proper to the public agency. It does not assign the burden to the requester to prove the denial was improper.

Having failed to do so here, LMPD may still exercise the option to appeal the Attorney General's open records decision. But the Attorney General refused to shift the burden to the Courier Journal and obligate the newspaper to initiate litigation on behalf of the public's right to know.

This was and is the correct result.