Don't celebrate a new era of transparency among Kentucky's law enforcement agencies just yet.

And don't look to the Kentucky State Police to serve as a positive role model for the rest of the Commonwealth's law enforcement agencies.

WBKO reports that requests submitted to KSP for records relating to the death of Jeremy Marr, who died in police custody in April, have been denied or remain unanswered.

WBKO indicates that a video surfaced a few days after Marr's death in which police officers "knee[d] Marr while he was face down."

Since Marr's death, WBKO has requested Marr's autopsy report, the 911 call, and body cam footage.

In its June 15 denial of WBKO's request for the 911 call, KSP defaults to its standard response that the investigation remains open.

In what is immediately recognizable as boilerplate language, KSP asserts that premature disclosure "could result in prejudice to the witnesses and may adversely affect their recollection of events."

"Could?" "May?"

Unfortunately for KSP, speculative or hypothetical concerns are not sufficient to justify denial of WBKO's request(s).

Can the state's chief law enforcement agency seriously claim that it is unaware of the 2013 Kentucky Supreme Court opinion holding that KRS 61.878(1)(h), the law enforcement exemption, "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

"Could?" "May?"

And the fact that KSP threw a separate statute, KRS 17.150(2), into the mix reflects a cynical belief that two improperly invoked exceptions are better than one.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=46877

To begin, KRS 17.150(2) was not raised by the law enforcement agency in the referenced 2013 case. The Court therefore did not address it.

KRS 17.150(2) extends protection to "intelligence and investigative reports," not autopsies, 911 calls, and body cam footage compiled coincident to, but not generated as an integral part of, the investigation.

KRS 17.150(2) is facially inapplicable to the requested records.

Finally, KRS 17.150(3) states that "[w]hen a demand for the inspection of the records is refused by the custodian of the record, the burden shall be upon the custodian to *justify the refusal of inspection with specificity.* Exemptions provided by this section *shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section*."

The open records law enforcement exception contains nearly identical language, declaring, "The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=49156

KSP labors under the delusion that it may profligately invoke this statute to avoid the necessity of demonstrating that "because of the record's content, its *release poses a concrete risk of harm to the agency in the prospective action*."

In fact, KRS 61.878(1)(h), the open records law enforcement exception, and KRS 17.150(2) and (3) are companion statutes that are clearly meant to achieve the same end: permitting nondisclosure of law enforcement records *only* if there is *specific* proof of *concrete* harm to a prospective action and not simply if a case is open.

Anyone who argues otherwise is grasping at straws.

KSP is grasping at straws at a time when it can ill-afford to do so.