In response to an open records request filed by attorney Sam Aguiar, Louisville Metro Police Department today acknowledged the existence of body cam video — which it previously denied in response to a subpoena — taken the night Breonna Taylor was fatally shot by LMPD officers.

Relying on the "law enforcement" exemption— KRS 61.878(1)(h) along with KRS 17.150(2) — LMPD denied the open records request in its entirety.

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

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

LMPD explained that disclosure "could jeopardize the pending prosecution by identifying witnesses not otherwise known and tipping them off to the direction of the ongoing criminal case, influence witness recollection of the incident, and taint the jury pool by permitting the 'case' to be tried in the court of public opinion rather than the court with the benefit of procedural and evidentiary rules."

These are the same excuses LMPD offers in denying virtually every open records request that involves an open criminal investigation.

Has LMPD made a meaningful effort — or any effort at all — to "identify and review its responsive records, and release any that are not exempt" because disclosure would not harm the agency in the prospective law enforcement action?

That was the central issue in City of Fort Thomas v Cincinnati Enquirer, issued by the Kentucky Supreme Court in 2013. And it is City of Fort Thomas v Cincinnati Enquirer that is controlling in this open records dispute.

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

That opinion makes abundantly clear that there is *no* blanket exemption for law enforcement records in an open investigation.

"[T]he law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern."

A litany of generic excuses — identify witnesses, influence witness recollection, taint the jury pool — does not constitute "a factual basis for applying [the exemption]."

It is, at best, "hypothetical or speculative concern" that could be argued in any and all criminal investigations/prospective enforcement actions. It does not meet LMPD's statutory burden of sustaining the denial.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065

As noted, the law enforcement exemption is appropriately invoked only "when, *because of the record's content*, its release poses a concrete risk of harm to the agency in the prospective action."

At the risk of sounding like a broken record, the Kentucky Open Government Coalition again vigorously objects to LMPD's legally unsupportable position that all records compiled in an ongoing investigation are exempt from disclosure.

But in our defense, LMPD itself sounds a lot like like a broken record.