Comparing Kentucky's open records laws with other state's laws is both an irresistible temptation and an occupational hazard.

Often, Kentucky's open records law comes up on top — in theory if not in practice.

Watching this video, I was initially struck by the similarities in Kentucky's and Colorado's laws but quickly thanked my lucky stars that I spent 25 years interpreting our state's law.

Flawed though it may be, Kentucky's law places deadlines on agency production of public records (KRS 61.880(1)), restricts copying fees that may be imposed (KRS 61.874(3)), provides a mechanism for requesters aggrieved by agency denial to appeal to the Kentucky Attorney General (KRS 61.880(2)), and — importantly — treats criminal justice and law enforcement records no differently than any other records.

In fact, a 2013 Kentucky Supreme Court case holds law enforcement agencies to a high standard for withholding these records — even while a criminal investigation is ongoing.

In City of Ft. Thomas v Cincinnati Enquirer, the Court reversed an open records decision issued by the attorney general involving access to investigative records in the Bonnie McCafferty case.

Note: By statute, appeals of the attorney general's open records and meetings decisions are de novo, meaning the circuit court reviews the issues without reference to what came before. In reality, courts regularly reference the AG's open records or meetings decision in a particular dispute, sometimes quoting them at length, and more than one appellate courts has characterized them as "highly persuasive."

Back to City of Ft. Thomas v Cincinnati Enquirer. The AG affirmed the city's denial of the request under the "law enforcement" exception to the open records law: KRS 61.878(1)(h).

That statute requires the law enforcement agency to verify that the disputed records were compiled in an investigation and that premature disclosure would harm the agency's investigation or subsequent enforcement action.

The key word here is "harm."

The AG's staff concluded that the city demonstrated sufficient harm that would result from disclosure to justify the city's reliance on the exception.

We internally referred to it as the "gold standard" of a showing of harm, much more substantial than the "taint the jury pool" or "prejudice witnesses" justification so often advanced. And infinitely superior to the more common default, "the records are not subject to the open records law because the investigation is open."

The Supreme Court disagreed with our analysis.

It held that the city failed to make an adequate showing of harm, declaring that law enforcement agencies are required, under the exception, to demonstrate concrete harm and not speculative harm.

Whatever the stage of the investigation or prosecution, these agencies must review the records in the file and release any records the disclosure of which would not cause actual harm.

This is the law in Kentucky, though some officials are intentionally slow to accept it.

It is a far cry from Colorado's separate law protecting criminal justice records — which includes internal affairs investigations into allegations of impropriety wrongdoing by law enforcement officer — and which vests law enforcement agencies with unfettered discretion to decide what is good for the public to know and what is not good for the public to know.

In Kentucky, internal affairs files are accessible once final action is taken in the case (allegations substantiated and discipline imposed or allegations unsubstantiated and no discipline imposed), or a decision is made to take no action (officer resigns, preempting "final action").

But be warned.

Among many other troubling things, the original version of what became SB 193 — introduced in the 2019 legislative session — proposed to exclude from public inspection internal affairs/disciplinary records relating to law enforcement officers and several other categories of public employees (for example, social workers at the Cabinet for Health and Family Services).

The bill did not make it out of committee and was "passed to the interim" for further discussion.

There is a very real possibility that it, or something like it, will re-emerge in the next session.

My greatest fear is that lawmakers will soon attempt to dilute the public's right of access to criminal justice/law enforcement records which are already adequately protected under Kentucky law.

To once again paraphrase Kentucky's first open records analyst in the Office of the Attorney General: secret police activity without some overriding justification is contrary to a democratic society.

Based on what I have observed in the 28 years I've known the Kentucky open records law, the importance of transparency and accountability is nowhere greater.

Take a look at this video from Colorado's News5 and be thankful — for now — you reside in Kentucky.

But be mindful that Kentucky's lawmakers are intent on restricting rather than expanding the public's rights under our existing open government laws.