The Governor, the Mayor, and others have urged Attorney General Daniel Cameron to make the investigative files in the Breonna Taylor case immediately available.

A sanitized narrative of the fatal police shooting of Ms. Taylor on March 13, 2020, is no substitute for public review of the investigative records compiled by the Attorney General containIng the unfiltered facts that led a grand jury to issue indictments against a single LMPD officer.

Speculative claims of potential prejudice to the forthcoming prosecution — which is likely to end in a plea bargain — satisfy neither the legal standard established by Kentucky's highest court nor the overriding public right to know the whole truth and nothing but the truth.

Does the law permit disclosure of those files at this juncture?

Absolutely. Fundamental to the open records law is the proposition that "free and open examination of public records is in the public interest."

The exceptions to the open records law are permissive — not mandatory. The Office of the Attorney General recognized this principle in an open records opinions issued shortly after the law's enactment, declaring that the exceptions are "a shield and not a shackle."

The Kentucky Supreme Court affirmed that principle in a 2013 opinion involving the Attorney General's waiver of the law enforcement exception — the exception at issue in the case of the Breonna Taylor files — confirming that "the General Assembly did not intend to mandate an iron rule of non-disclosure whenever an exemption applies."

https://caselaw.findlaw.com/ky-supreme-court/1653243.html

Consistent with the proposition that "free and open examination of public records is in the public interest," public agencies may — and often do — waive their right to invoke an exception if they believe no governmental interest will be compromised by disclosure of requested records.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23058

Does the law compel disclosure of the investigative files at this juncture?

Perhaps. Even open government advocates may disagree on this question — at least by degree.

Although the Governor proposed broad disclosure when he suggested that "having the full amount of information out there . . . is something that can help us move forward and make improvements," he made a more measured and legally unassailable recommendation in his prepared remarks.

As a former attorney general, he understands best the tension between the need to ensure successful prosecution and the public's right to know — here magnified many times over.

Beshear urged the Attorney General to "post online all the information, evidence and facts that he can release without impacting the three . . . felony counts in the indictment issued today," including ballistics reports relevant to the investigation.

As to Officers Mattingly and Cosgrove, the decision not to prosecute has been made. Investigatory records that resulted in their exoneration should — by any legal standard — be released.

But blind assumptions can be dangerous.

As the Supreme Court has observed, "Open Records Act disputes are notorious for posing unique challenges to our usual adversarial method of dispute resolution. Whereas in most disputes both sides have more-or-less equal access to the relevant facts, so that factual assertions and legal claims can be adversarially tested, in ORA cases only the agency knows what is in its records."

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

Are the records in the file so inextricably intertwined that disclosure of "information, evidence, and facts" will inevitably "impact the three . . . felony counts in the indictment."

Has the FBI directed the Attorney General to withhold the records while its investigation proceeds?

In either case, the Attorney General owes it to the public and to the law to make a legitimate effort to articulate the actual, concrete harm to his office's, or the FBI's, prosecution, that would flow from premature disclosure and to cease palavering about tainted jury pools and witness memories.

In the vacuum Cameron has created, we are left to speculate about his "real" reasons for continuing secrecy. This speculation inevitably breeds mistrust.

It is, after all, the public right to know the whole truth — and not a censored version of the truth — that is the cornerstone of our open records law. And it is that right that is ultimately disserved by Cameron's insistence that no records can be disclosed while a case — any case — remains open.

In the words of Cameron's processor in office, "Secret police activity without some overriding justification is repugnant to the American system of government."

Cameron presents no justification — overriding or otherwise — for secrecy.

He withholds his investigative files simply because he believes he can.