The Kentucky Supreme Court has scheduled oral argument for August 14, at 1:30 pm, in Shively Police Department v Courier Journal, Inc.

NOTE: This is not the Kentucky Open Government Coalition case involving public servants' communications about public business on their personal devices and/or accounts. The Court has granted discretionary review in our case, but it has not yet been briefed. Nor has oral argument been scheduled.

The Shively open records case will decide whether KRS 17.150(2) -- long relied upon by law enforcement agencies to indiscriminately deny access to all records in an open investigation -- swallows up the limitations contained in the KRS 61.878(1)(h), the open records exception requiring a showing of actual harm from premature disclosure based on the content of the record.

In a unanimous opinion, the Court of Appeals determined that it does not, reasoning:

"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."

http://opinions.kycourts.net/COA/2021-CA-001120.PDF

https://kyopengov.org/blog/kentucky-court-appeals-opinion-rejects-law-e…

In October 2023, the Kentucky Open Government Coalition and co-counsel, retired Jefferson Circuit Court Judge John Potter, tendered to the Kentucky Supreme Court an amicus brief in Shively Police Department v Courier Journal, Inc.

https://kyopengov.org/blog/coalition-tenders-amicus-brief-kentucky-supr…

Potter and the Coalition examined the previously unexamined legislative history of the Open Records Act and the Criminal Records and Statistics Act, both enacted in 1976, to confirm beyond any doubt that KRS 17.150(2) "is an affirmative expression of when records are public, not an implied expression of when they can be kept secret."

"The legislative history," Potter and the Coalition concluded, "supports the Courier's position."

Given the propensity of law enforcement agencies to habitually issue blanket denials of requests for records in open investigations that remain open indefinitely, and the compelling public's interest in those records, this case is one in which the stakes are very high.