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Graphic depicting a pencil erasing the words “criminal record”

“The criminal case against former Louisville police detective Brett Hankison, the only officer charged in the controversial raid that killed Breonna Taylor, has been expunged, or erased, from public records.

“As part of a Kentucky law passed in 2020, criminal cases in which a defendant is found not guilty are supposed to be automatically expunged within 60 days.”

https://www.wdrb.com/in-depth/ex-louisville-officers-charges-in-breonna…

This story, reported by WDRB’s Jason Riley, raised eyebrows and ignited anger. 

Records expungement is not equivalent to records destruction. 

Public records experts struggle with the concept. Open government advocates are at least, conflicted, and at most, opposed.

The Kentucky Department for Libraries and Archives describes “expungement” as follows:

“In certain instances, Kentucky law allows for the courts, or other administrative bodies, to order that records be expunged, or sealed. In most cases, when the courts order that record(s) be expunged, the agency holding the records can delete all references to the record(s) in question and may legally deny their existence. The agency is then required to protect that record in such a way that prohibits the information from disclosure. There are instances in which the court could order the record to be reopened at a later date. While the expungement order affects access to the record(s) in question, agencies should continue to follow the retention period listed in the appropriate Records Retention Schedule, unless ordered differently by the court.”

https://kdla.ky.gov/records/Documents/Destruction%20Guidelines_November…

“Legal fiction” is the term that comes to mind. The records exist as a physical reality, but their existence is not a legal reality. 

Kentucky’s expungement law states:

“An order of expungement pursuant to this section shall expunge all criminal records in the custody of the court and any criminal records in the custody of any other agency or official, including law enforcement records, but no order of expungement pursuant to this section shall expunge records in the custody of the Department for Community Based Services. The court shall order the expunging on a form provided by the Administrative Office of the Courts. Every agency, with records relating to the arrest, charge, or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty (60) days of the entry of the expungement order, that the required expunging action has been completed. All orders enforcing the expungement procedure shall also be expunged.”

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=50191

The New Mexico ACLU — like other chapters of the ACLU, a great proponent of open government laws — explains it this way:

“Open government advocates and some members of the press have opposed expungement legislation, arguing that the public and the press have a right to know about a person’s criminal history. [Expungement laws do not] limit the press’ ability to report on criminal cases or require them to erase stories they have run. [In general, the laws do] not expunge records for law enforcement purposes and sealed court records could be opened by a judge for good cause, like any other sealed record.”

https://www.aclu-nm.org/en/news/setting-record-straight-expungement

Expungement has given rise to disputes under the Kentucky open records law, but those disputes are rare.

https://ag.ky.gov/Resources/orom/2016/16ORD125.doc
(an open records appeal that was assigned to AAG Amye Bensenhaver but the resulting open records decision not signed by AAG Amye Bensenhaver—draw your own conclusions).

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