As expected, the Shively Police Department has requested that the Kentucky Supreme Court review the Court of Appeals' opinion in Courier Journal, Inc. v Shively Police Department.
The case began in 2020 when The Courier Journal sued the Shively Police Department for failing to provide records relating to a high speed chase that ended in the deaths of a woman, her son, and a baby, and whether officers complied with department policies on pursuits.
Kentucky's highest court must now decide whether to deny Shively's request and let stand the November, 2022, published opinion (meaning one that can be cited as precedent in other cases), grant Shively's request and review the opinion, or deny Shively's request and depublish the opinion.
Discretion rests with the Court to decide which course it will pursue.
In November, 2022, a unanimous panel of the Court of Appeals ruled:
“[G]eneral allegations of potential harm which would seem to apply in any criminal investigation” are not sufficient to justify wholesale denial of an open records request for records relating to an open investigation.”
At the time, the Kentucky Open Government Coalition observed that Courier Journal, Inc. v Shively Police Department:
"forcefully repudiates law enforcement efforts to indefinitely postpone public access to records in open investigations where disclosure of those records would not 'harm the agency in the prospective action.'
"Courier Journal v Shively Police Department reaffirms the Supreme Court’s holding in City of Fort Thomas v Cincinnati Enquirer but takes an additional — and critical — step beyond by rejecting KRS 17.150(2) as a default position for law enforcement agencies determined, for whatever reason, to withhold all records in an open investigation regardless of the existence of any harm.
"The court expressly rejects past and present attorneys general’s broad application of the statute 'to restrict all access to information which law enforcement has which may pertain to a prospective law enforcement action,' observing that 'such opinions are not controlling, and we disagree with such an interpretation based on the statutory language. Instead, given the paucity of relevant and applicable controlling authority interpreting KRS 17.150(2), we decide this issue in accordance with our own interpretation of its relevant statutory language.'
"The Court of Appeals repudiates Shively’s reliance on KRS 17.150(2) to 'essentially swallow[ ] up the limitations contained in the KRS 61.878(1)(h) exemption.'
“'KRS 17.150(2) provides for the complete disclosure of intelligence and investigative reports maintained by criminal justice agencies after 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.'
"Simply put, KRS 17.150(2) is a disclosure statute, with exceptions, that applies after prosecution is complete. It is not a nondisclosure statute and does not apply while the investigation/enforcement action is ongoing.
In its petition for discretionary review to the Kentucky Supreme Court, Shively Police Department challenges The Courier Journal’s position that KRS 17.150(2) is not a confidentiality statute — a position with which the Court of Appeals agreed. Shively argues that law enforcement agencies should not be required to review the records in an investigative file, while the investigation is open, to determine whether disclosure would harm the investigation or prosecution in the case.
This requirement has, however, existed in the open records law since it was enacted. The Kentucky Suprrme Court has repeatedly recognized that a public agency is required to “identify and review its responsive records, [and] release any that are not exempt.”
(in which the Kentucky Supreme Court educated the University of Kentucky on its longstanding duties under the open records law: “Because the investigative file likely contains documents that are excepted under the ORA and documents that are not, the University's duty, as a public agency, was to separate excepted and nonexcepted documents. For each document the University claims can be properly withheld from production pursuant to the ORA, the University had the burden to prove that the document fits within an exception by identifying the specific ORA exception and explaining how it applies.”)
Whatever the “burden” to law enforcement agencies after Courier Journal, Inc. v Shively Police Department, it is one that has long existed, one that every other public agency must shoulder, and one that law enforcement agencies have largely evaded (with an assist from several attorneys general) for decades.
Whatever the burden, it is a burden of law enforcement agencies’ own making, resulting from their stubborn refusal to acknowledge their status as public agencies, and their records as public records, subject to the open records law in every particular.
In the early days of the open records law, the Attorney General rightly observed:
“Police departments do not have the authority to act privately, confidentially or secretly unless expressly authorized in particular kinds of cases.” OAG 76-476.
“The sovereign is a party to police actions and therefore the public has a right to inspect the records of . . . [its] actions.” OAG 76-511.
“Secret police activity without some overriding justification is repugnant to the American system of government.” OAG 80-144.
Should the Supreme Court agree to review Courier Journal Inc. v Shively Police Department, we are hopeful the Court will affirm the Court of Appeals’ holding — a holding that does not require law enforcement agencies to compromise their ongoing investigations, but only to review their file, separate nonexempt records — those for which they can identify no harm from disclosure — from exempt records — those for which they can identify and articulate actual, concrete harm from disclosure — and release the nonexempt records.
It is precisely what the open records law envisions for all public agencies — including law enforcement agencies — in the statutory mandates: “If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.”
For now, we await the Supreme Court’s decision whether to grant Shively Police Department’s request for review.