This is *not* a defense of Attorney General Daniel Cameron as first line open records dispute mediator under the open records law.

It is certainly *not* a defense of Cameron's interpretation of the open records law that "allows police agencies to give 'blanket' open records request denials for investigatory files."

This *is* an expression of gratitude for The Courier Journal's willingness to directly challenge a longstanding interpretation of two laws that have erected barriers to law enforcement records in open investigative files since they were enacted in 1976.

One is captioned "Certain public records exempted from inspection except on order of court" — referred to as the law exemption to the open records law — and is found in Chapter 61 of the Kentucky Revised Statutes.

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

The other is captioned "Public inspection exemption" and is found in Chapter 17 of the KRS.

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

The Courier's appeal of the Kentucky State Police denial of its request for investigative records in the National Guard shooting death of David McAtee last summer is the first known opportunity to resolve a dispute over legal interpretation that has raged between staff and administration in the Office of the Attorney General for decades — not just since Cameron took office — and that has resulted in multiple result driven open records decisions through the years.

While this may be a minor point, it is not true that Cameron's interpretation of these statutes as a basis for blanket denial of open records requests is his alone. He has not "broken with his predecessors by elevating the record-keeping law to be an open records exception."

It is an interpretation of the laws that dates back to the eighties, that fell into disuse in the nineties after a poorly reasoned Kentucky Supreme Court opinion, Skaggs v Redford, rendered it largely irrelevant, and that was resurrected after a 2013 opinion, City of Fort Thomas v Cincinnati Enquirer, overruled Skaggs and made it difficult to affirm agency denials absent a showing of actual, concrete harm from premature disclosure of records in an open investigative file.

https://casetext.com/case/skaggs-v-redford

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

In 1983, for example, the Attorney General recognized that under "KRS 17.150(2), and its 'companion statute,' KRS 61.878(1)(h), investigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts."

In later opinions, the OAG held that "law enforcement agencies may withhold investigative records until prosecution is or a decision not to prosecute has been made. In other words, "the right of public inspection set forth in KRS 17.150(2) is contingent upon the completion of the investigation and litigation or a determination having been made not to prosecute." Citing OAG 90-143; OAG 88-27; OAG 87-66; OAG 87-15.

Let's give discredit where discredit is due. Cameron is not the first attorney general to give his "blessing" to this interpretation of KRS 17.150(2).

While Cameron generally disdains 45 years of interpretation of the open records law by his predecessors, he happily embraces it on this issue.

Clearly, the stakes have never been higher and the need never greater for proper judicial resolution of this disputed legal issue.

The Courier's argument that KRS 17.150(2) is "a record-keeping statute that says records must be released at the end of an investigation," and that it was never intended to be treated as a exception to the open records law, is presented here for the first time.

It may have originated in research into the legislative history of KRS 61.878(1)(h) and KRS 17.150(2) performed by retired Jefferson Circuit Court John Potter following Louisville Metro Police Department's denial of his open records request last year.

https://ag.ky.gov/Priorities/Government-Transparency/orom/2020/20-ORD-1…

Here's hoping The Courier and/or Judge Potter can persuade an appellate court and finally lay to rest the longstanding interpretation that renders the law enforcement exception in the open records law "utterly meaningless" and "allows law enforcement to keep investigations open indefinitely, denying public access."