In response to an FBI bulletin warning of "'armed protests planned at all 50 state capitols' from Saturday through 'at least' President-elect Joe Biden's inauguration on Jan. 20," Governor Beshear announced on January 11 that measures have been implemented to "protect these buildings, these grounds, and everyone in them."

Beshear was referring to the Capitol, Capitol campus buildings, and those who work in them.

The governor made clear he would not disclose specific safety plans "because we are not going to give those that would commit domestic terror a game plan that they can try to plan around."

The Kentucky Open Records Law supports Governor Beshear's decision to withhold the plans under an exception adopted in 2005.

KRS 61.878(1)(m) permits agencies to deny requests for "[p]ublic records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act." "Public records," as defined in the exception, includes "[a]nti-terrorism protective measures and plans."

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

The term "terrorist act" is defined in the statute as "a criminal act intended to "[i]ntimidate or coerce a public agency or all or part of the civilian population" and/or to "[c]ause massive destruction to a building or facility owned, occupied, leased, or maintained by a public agency."

The exception was enacted in the aftermath of the terrorist attacks of 9/11, but encompasses domestic terrorist attacks such as those the FBI warns of in its recent bulletin.

Enacted after years of careful vetting by all interested parties, including the Kentucky Press Association, there was early apprehension about agency abuse of the "homeland security" exception. Those concerns were soon allayed.

Attempts by the Fletcher administration to invoke the exception to deny access to fuel receipts signed by members of the governor's executive security detail and records reflecting total costs incurred in the protection of Dick Cheney following a visit to the Kentuckiana area were unsuccessful. It became clear that resolution of disputes concerning the applicability of the new exception would turn on the "reasonable likelihood" language and that courts would not accept agency claims at face value.

https://ag.ky.gov/Priorities/Government-Transparency/orom/2005/05ORD255…

https://lawreader.com/?p=15654#cheny

Few scenarios have presented themselves where the exception could so clearly be invoked as the current scenario.

Disclosure of security measures developed in response to the threatened armed protests is reasonably likely to threaten the public safety "by exposing a vulnerability in preventing, protecting against, mitigating, or responding to" criminal acts intended to "[i]ntimidate or coerce a public agency or all or part of the civilian population" and/or to "[c]ause massive destruction to a building or facility owned, occupied, leased, or maintained by a public agency."

An exception that was a recognized necessity in 2005, but that has rarely been invoked in intervening years, is again a necessity in the face of imminent lawless action that represents a clear and present danger.

Clearly, this is a case where "the General Assembly has [rightly] determined that the public's right to know is subservient to the need for governmental confidentiality."