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Photo of police car with “Police Records” caption

Lexington Herald Leader staff reporter Taylor Six examines, in detail, state and local law enforcement agencies continuing defiance of the open records law in the face of overwhelming legal authority repudiating blanket nondisclosure of open criminal investigative files.

“Family and social activists groups have called for more transparency from state and local police departments after a Nicholasville man -- Desman LaDuke -- was killed by a Nicholasville police officer in October, but law enforcement agencies have denied multiple requests under the Kentucky Open Records Act to release more information.

"As is common when state police launch an investigation into a police shooting, officials said in a statement that 'KSP is committed to being transparent while ensuring the integrity of the investigation.'

“'To protect the integrity of an ongoing investigation, it is KSP’s standard operating procedure not to release specific details until vital witnesses have been interviewed and pertinent facts gathered,' state police said when asked about LaDuke’s death. 

“'Timelines to complete investigations vary based on the complexity of the case.'

"Both Kentucky State Police and the Nicholasville Police Department have denied formal requests to release several pieces of information — including bodycam video and 911 call audio — relating to the death of LaDuke.

"State police partially or fully denied requests filed by the Herald-Leader under the Kentucky Open Records Act in an effort to obtain copies of bodycam footage, 911 call audio incident reports and photographs from the scene of the shooting.

"The [heavily redacted] records which state police provided included only an initial report that had been filed to confirm troopers were investigating the incident.

"Stephanie Dawson, a public records custodian for state police, said the investigation remained ongoing and 'the Commonwealth’s Attorney has neither declined to prosecute (the case), nor concluded prosecution of it.'

"Michael Abate, a First Amendment and media law attorney, told the Herald-Leader that state police’s refusal to disclose these records are both 'illegal and outrageous.'

“'They have been sanctioned multiple times in recent years by Kentucky courts for claiming that an entire investigation file can be withheld solely because of a pending investigation — just as they are doing in this case,' Abate said. 'That is not the law, but KSP keeps making that argument anyway even though it keeps losing in court and declining to appeal.'

"“The KSP is going to great lengths to keep the public in the dark and to waste taxpayer money by making legal claims that have been repeatedly rejected. That should end, immediately.'"

If anyone should know, it is Abate. In 2013, media organizations led by the Cincinnati Enquirer won a landmark victory in a case involving access to an open investigative file. 

The Kentucky Supreme Court, in City of Fort Thomas v Cincinnati Enquirer, declared that the open records law enforcement exception -- which authorizes nondisclosure of records compiled by a law enforcement agency in an ongoing criminal investigation -- can be legally 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." (see, KRS 61.878(1)(h))

Law enforcement agencies could no longer rely on the law enforcement exception to issue blanket denials of open records requests for records in an “open” investigation without identifying “a concrete risk of harm to the agency” from disclosure of a particular record or category of records. 

Law enforcement agencies thereafter defaulted to a separate statutory enactment — KRS 17.150(2) — as the basis for denying access to records in an open criminal investigation. Aided and abetted by a series of attorneys general who could not be convinced otherwise, they argued that KRS 17.150(2) authorized blanket nondisclosure of open criminal investigative files — •without showing any harm• — when an investigation was open.

State and local law enforcement agencies treated 17.150(2) as an “enactment of the General Assembly” that 

“prohibited or restricted or otherwise made confidential” public records or information incorporated into the open records law by KRS 61.878(1)(l). A series of attorneys general adopted this position over the protests of career open records staff.

In November, 2022, the Kentucky Court of Appeals flatly rejected this position in a case pitting The Courier Journal against the Shively Police Department, determining that KRS 17.150(2) does not apply “at all” when a “prosecution is not complete.”…

“[G]eneral allegations of potential harm which would seem to apply in any criminal investigation” are not sufficient to justify wholesale denial of an open records request for records relating to an open investigation.

“KRS 17.150(2) provides for the complete disclosure of intelligence and investigative reports maintained by criminal justice agencies after a prosecution is complete, subject to four specific exemptions. Therefore, KRS 17.150(2) should only apply if the conditions set out in its prefatory language are met. There is no reaching the exceptions where a determination to prosecute has been made and the prosecution is not yet completed.”

Stated simply, 17.150(2) is a mandatory post-prosecution disclosure provision with four exceptions and •not• a pre-prosecution nondisclosure statute incorporated into the open records law by KRS 61.878(1)(l).

The opinion is not yet final. It may well be appealed. But the court’s legal analysis is unassailable. 

Kentucky attorneys general got it wrong. Law enforcement agencies got it wrong. 

There is no legal justification for the blanket nondisclosure of an open investigative file. Individual records, or “categories” of records, can be withheld only if the law enforcement agency can identify “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.”

The sooner law enforcement agencies (and the current attorney general as well as his successors) accept that “an entire investigation file cannot be withheld solely because of a pending investigation” and that they are “wast[ing] taxpayer money by making legal claims that have been repeatedly rejected,” the better for Kentuckians and the better, yes, for law enforcement in Kentucky.