Attorneys for The Courier Journal argued on Monday, August 24, for release of Louisville Metro Police Department's investigation into the fatal shooting of Breonna Taylor.
Assistant County Attorney Paul Guagliardo countered that release of the investigative records "would be premature and could hinder the integrity of the case."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48230
Following Louisville Metro Police Department's denial of its request for the investigative file, The Courier Journal wisely bypassed an appeal to the Kentucky Attorney General and challenged the denial in the Jefferson Circuit Court on May 26.
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23066
In June, LMPD Interim Chief Rob Schroeder fired Officer Brett Hankison — one of three identified officers involved in the Taylor shooting — for "'extreme violations' of LMPD policy." Schroeder referenced the investigation in Hankison's termination letter.
Based on a 40 year old precedent dealing with the preliminary documents exception and internal affairs investigations, attorneys for The CJ argued, this entitles the public to full access to that file "to understand why the chief took action against an officer and fired him."
https://casetext.com/case/city-of-louisville-v-courier-journal-etc
Attorneys for the city responded that The CJ's position is premised on the erroneous characterization of the disputed file as a public integrity unit (internal affairs) administrative file.
Instead, they argued, the file was generated in the course of a criminal investigation that was and is ongoing and it may therefore be withheld under the law enforcement exception to the open records law. Premature disclosure could compromise that investigation.
The 40 year old precedent is not, the city contends, governing legal authority.
It is unclear what proof of harm to the criminal investigation from premature disclosure, if any, the city presented. Recent caselaw makes abundantly clear that the mere fact that a case is open is not a sufficient basis for denying the public access to investigative records.
The ongoing law enforcement exception, Kentucky's Supreme Court has determined, is "appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern."
https://caselaw.findlaw.com/ky-supreme-court/1643297.html
Judge Barry Willett did not rule from the bench but took the case under submission.
In an ironic twist, Assistant County Attorney Paul V. Guagliardo, former Deputy Director of Law for the pre-merger City of Louisville, represented Louisville in the 1982 case upon which The Courier Journal relies.
CJ counsel Michael Abate's law partner, Jon Fleischaker, represented the newspaper in the same early open records case.
