Open government advocates in Kentucky are hailing today's well reasoned opinion in Shively Police Department v Courier Journal, Inc.
(http://opinions.kycourts.net/sc/2023-SC-0033-DG.pdf)
Just over a month ago, the Supreme Court heard oral arguments in the case. The Court swift resolution of the issues in the case lays to rest lingering doubts about law enforcement agencies' duties in responding to open records requests for records in an open investigation.
https://kyopengov.org/blog/supreme-court-hears-oral-argument-shively-po…
As you may recall, this was the case that originated in Shively's blanket denial of The Courier's request for specific records relating to a July 27, 2020, high speed chase on Dixie Highway which ended when the suspect struck an uninvolved car, "injuring the occupants and ultimately killing three of them."
(https://caselaw.findlaw.com/court/ky-court-of-appeals/2001652.html)
The Kentucky Open Government Coalition was honored to join with retired Jefferson Circuit Court Judge John Potter in filing an amicus brief in support of The Courier's position. We examined the legislative history of the open records law and the Criminal History Records Act -- both enacted in 1976 -- to confirm that "KRS 17.150 is an affirmative expression of when records are public, not an expression of when they can be kept secret." In other words, the statute "is a statement of when documents must be produced and is not an implied statement that the records must otherwise remain secret."
On September 26, the Kentucky Supreme Court affirmed The Courier's (and our) position by flatly rejecting the long held notion among law enforcement officials that any and all public record(s) in an open investigation can be withheld until prosecution is concluded and the case is closed.
In a nutshell:
•the Court holds firm to past interpretation of the open records law enforcement exception (KRS 61.878(1)(h)) requiring agency proof of actual harm from disclosure of records in an open investigation. Generalized claims of harm applicable in all cases are not sufficient.
•the Court repudiates decades of erroneous interpretation of a KRS 17.150(2)--regularly treated as an exception to public inspection in open investigations & deemed incorporated into the open records law. NO MORE! A singularly important victory for the public's right to know.
•rejecting agency reliance on the privacy exception (KRS 61.878.(1)(a)), the Court finds no proof of a personal privacy interest in dash/body cam superior to the public's interest in disclosure.
•Best quotation: "The General Assembly does not hide elephants in mouseholes."
More to come on the significance of the Supreme Court opinion. Duty calls us elsewhere!
