Citizens for Responsibility and Ethics in Washington (CREW) offers these suggestions for nationwide reform of records retention and access laws to ensure effective oversight of law enforcement agencies.

Merely repealing bad laws, such as New York's Section 50-a, "is not enough," CREW asserts, "states should enact comprehensive reforms creating both an affirmative right of public access to police disciplinary records and a duty to preserve those records. Such reforms are a critical step to piercing the veil of secrecy over our nation's police departments, which for too long have covered up abuse and turned a blind eye to repeated officer misconduct."

Reform should therefore focus on:

•Full disclosure of officers' complaint and disciplinary history. This should include the complaints themselves, the current status of any pending complaints, evidence and transcripts from any disciplinary trial or hearing, and any recommendations from civilian review boards or similar entities regarding potential discipline. It should also include the final outcome of any investigation or disciplinary proceeding and opinions explaining the basis for that decision. These requirements should be subject only to limited and clearly-defined exemptions authorizing the redaction of sensitive personal data such as home addresses, telephone numbers, medical history, and personally identifiable information for private parties. New York's Senate Bill 8496, which repealed 50-a, includes many of these requirements, and could serve as a useful model for other states.

•Permanent retention of complaint and disciplinary records relating to an officer's alleged use of force resulting in bodily injury or death, discharge of a firearm, or claims of sexual assault or abuse; mandatory retention of any complaint or disciplinary record sought through a public records request until at least the request is fulfilled; and temporary retention of all other types of complaint and disciplinary records for at least five years.

•Criminal penalties for destroying disciplinary records in violation of statutory preservation requirements.

•Clarification that the law applies to records created prior to its effective date—an issue that has become a serious point of contention in California following its enactment of Senate Bill 1421.

Kentucky is identified as one of fifteen states with limited access to records relating to police misconduct and discipline.

"In some of these states, only records of severe discipline, like a suspension or termination, are public while the rest is confidential. In others, responses vary by department because of evolving court precedents or ambiguity in the law."

https://www.wnyc.org/story/police-misconduct-records/

In an early open records opinion issued by the Kentucky Court of Appeals, the court determined that complaints of misconduct, and final action taken on those complaints, must be disclosed along with Internal Affairs [Public Integrity Unit, etc.] notes and recommendations adopted by the final decision maker. "Clearly," the court concluded, "the preliminary characterization is lost to that extent."

https://casetext.com/case/city-of-louisville-v-courier-journal-etc

The court later extended this analysis to complaints of misconduct on which no disciplinary action is taken. "[F]inal action of the agency," the court concluded, "was to take 'no action' on the complaint."

https://caselaw.findlaw.com/ky-court-of-appeals/1125917.html

This interpretation of the open records law was reaffirmed in a published Court of Appeals opinion issued in March, 2020. In a unanimous opinion, the court rejected the Kentucky State Police's reliance on the preliminary documents and privacy exceptions to deny a request for disciplinary records, affirming the Kentucky Attorney General's and the Franklin Circuit Court's "order allowing public disclosure of disciplinary recommendations and opinions relied upon by the KSP Commissioner in its final decision concerning TFC Woodside."

https://law.justia.com/cases/kentucky/court-of-appeals/2020/2017-ca-000…

As for existing retention requirements for local police disciplinary files, and underlying documentation, the General Schedule for Local Government, the Louisville Metro, and the Lexington-Fayette schedules require retention for five years after termination of employment, after which the records may be destroyed.

https://kdla.ky.gov/records/recretentionschedules/Documents/Local%20Rec…

The Kentucky State Police retention schedule is more complex. For sworn personnel complaint investigative files, it requires KSP to "purge Class B and C actions after five years" and destroy the remainder of the file ten years after termination of or separation from employment.

https://kdla.ky.gov/records/recretentionschedules/Documents/State%20Rec…

In June 2019, the Libraries, Archives and Records Advisory Committee was ask to approve a retention period for a previously unscheduled KSP records series: Counseling/Specific Contact Report. A KSP representative explained that the new series —which KSP had not previously treated as a public record for retention or access purposes — addressed minor conduct related to some tardiness, personal appearance, and report deadlines. Serious misconduct would be escalated to internal affairs."

After lengthy discussion about the value of disciplinary records, great or small, to verify patterns of conduct (as well as uniformity in enforcement), the committee voted to recommend a one year retention.

I cast a "no" vote.

The Libraries, Archives, and Records Commission, and it's Advisory Committee, would do well to reconsider this and all other retention schedules in light of CREW's recommendations.

And — short of enacting a new law mandating disclosure of police disciplinary records — Kentucky's law enforcement agencies, from top to bottom, would do well to abandon their interpretation of the open records law that limits the public's right of access to complaints and final actions — particularly in light of the cited 2020 published Court of Appeals opinion and CREW's highly persuasive recommendations.