The Courier Journal v LMPD open records appeal — which was the subject of a September 20, 2020, Kentucky Open Government Coalition post, and was pending in the Kentucky Court of Appeals — was dismissed on the court's motion on January 25.
https://www.facebook.com/kyopengovernment/posts/767440590469332
At the time of the appeal, we wrote:
"Courier Journal editor Rick Green confirms that the newspaper will appeal the Jefferson Circuit Court's September 17 opinion affirming Louisville Metro Police Department's denial of a May 2020 open records request for the investigative file into the fatal shooting of Breonna Taylor.
"Acknowledging that it was a 'close' case, Judge Barry Willett ruled that, '[g]iven the unique amount of public concern and criticism stemming from Ms. Taylor's death, one can make a rational connection between the kinds of records described by Chief [Robert] Schroeder [in his affidavit in support of nondisclosure] and the likely harm that would arise from their premature release.'
"In his July affidavit, Schroeder stated that the Public Integrity Unit case 'is still an active, ongoing investigation.'
"Premature disclosure, Schroeder maintained, would pose a 'substantial risk of harm to the investigation and prosecution,' — a risk of harm that is 'magnified because of the public attention to this case.'
"Representing the Courier Journal, attorney Jon Fleischaker — a champion of Kentucky's open government laws since their enactment and one of the laws' architects — harshly criticized the ruling.
Characterizing the circuit court opinion as a 'get-out-of-jail-free card' for improper withholding of nonexempt public records by law enforcement officials, Fleischaker observed:
"'Under his rationale, all the police have to do with any internal affairs investigation is declare it to be part of a criminal investigation, and they're home free. They don't have to release it. And that's not what the law was intended to be or what it is.'
"Attorneys for The Courier argued that the investigative file forfeited protection from disclosure when it was sent to outside law enforcement agencies on May 20. Therefore, the newspaper argued, it should be released under the open records law.
"After Chief Schroeder fired Officer Brett Hankison in June — basing his decision on the investigative file — The Courier Journal asserted that LMPD's denial was willful.
"In pursuing an appeal of the Jefferson Circuit Court opinion, Courier Editor Rick Green identified two priorities: 'holding LMPD accountable to Kentucky's law on public records while also providing an unvarnished look at the Breonna Taylor investigation to our readers.'"
On September 20 the Coalition wrote, "While it is not altogether clear from The Courier article on what statutory basis Judge Willett resolved the dispute, if ever an area of open records law demanded clarification, it is this one."
It is our understanding that this appeal was mooted by disclosure of the disputed investigative file.
This will not be the case that finally resolves the issue of public access to records in an open criminal investigative file where the law enforcement agency is unable to meet its burden of proof that disclosure will result in actual, concrete harm to the investigation or prospective enforcement action.
But other appeals are proceeding through the courts — including, most recently, Sam Aguiar's appeal of LMPD's denial of his request for body cam video from the night of the fatal police shooting of Breonna Taylor.
One of these cases may finally resolve this pressing public access issue.
