The folks at 14 News in Evansville, Indiana, might want to check Kentucky's open records law before giving up on their request — erroneously referred to as a Freedom of Information request — for the video recording of an incident that led to the firing of a Muhlenberg County Detention Center employee.

The station quoted the text of the Muhlenberg County jailer's response to the request. It read, "in part":

"Because the Muhlenberg Detention Center's former employee, Lonnie Drake, has been criminally charged as a result of this incident, premature release of the requested record might potentially harm any prospective law enforcement action or court adjudication, and as such, is exempt from the Kentucky Open Records Act. . . . "

Unless the omitted portion of the Detention Center's response contained proof that, because of the video's content, "release of the [video] poses a concrete risk of harm to the agency in the prospective action" against the terminated employee, the Detention Center failed to prove that it's denial of the Evansville station's request was legally justified.

The exception relied on, KRS 61.878(1)(h) — which we trust the Detention Center cited per the requirements of the open records law — authorizes nondisclosure of records of law enforcement agencies that are compiled in the process of detecting and investigating statutory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action.

Leaving aside the question of whether the Detention Center qualifies as a law enforcement agency investigating a statutory violation, and the video is a record maintained in the ordinary course of business rather than a record compiled in investigating a statutory violation, the Detention Center's response does little more than parrot the language of the exception.

As we have noted, in the landmark 2013 case, City of Fort Thomas v. Cincinnati Enquirer, the Kentucky Supreme Court held that a law enforcement agency must do more than show that the requested record is generally related to a possible enforcement action.

"A concrete risk of harm," the Court reasoned, "must be something more than a hypothetical or speculative concern." The agency must make "a factual showing that disclosure of the records at issue would prejudice the agency."

"Potential harm" is not sufficient to justify a law enforcement agency's reliance on KRS 61.878(1)(h).

If the Detention Center has been asked by the investigating law enforcement agency to withhold the record, and if it can surmount the other legal challenges identified above, it is possible that it could build a successful case for nondisclosure.

Based on the 14 News report, it was not made here.