The Courier Journal is on the open records warpath.

The CJ announced today that it will bypass the Kentucky Attorney General and proceed directly to the Jefferson Circuit Court to challenge Louisville Metro Police Department's denial of its request for a copy of the completed criminal investigative file in the Breonna Taylor case.

Three open records appeals of denials of CJ requests for records relating to the case are pending in the Attorney General's Office.

To sustain its denial of the CJ's request, LMPD must produce proof that because of the records' content, their release "poses a concrete risk of harm to the agency in the prospective action. A concrete risk must be something more than a hypothetical or speculative concern."

https://caselaw.findlaw.com/ky-supreme-court/1643297.html

In denying the CJ's request, LMPD stated that "prematurely releasing records for an ongoing investigation in a public forum could result in prejudice to the potential witnesses & has the potential to adversely color a witness' recollection of the events."

This is not proof of a concrete risk of harm. It is, at best, speculative.

It is also boilerplate language so frequently employed as to have been rendered meaningless. Unless LMPD does a lot more to substantiate concrete harm from premature disclosure in court, it will lose this open records dispute.

And, given the heartburn the particular open records exception invoked has caused attorneys generals, past and present, the CJ is very wise to bypass the Attorney General in this case.

CJ attorney Michael Abate explained the newspaper's decision:

"LMPD has put up these exact same objections to every single response in hopes, I guess, that the requesters will just go away. This lawsuit is an important signal that the public has a right to know what's going on, and the agency has a clear legal burden to beat if it wants to withhold records."