"Sunshine, sometimes it's delayed, but it's ultimately going to come."
This quotation from Jefferson County Commonwealth's Attorney Tom Wine, summarizes policies governing access to evidence in court case files under a rule established by the Kentucky Supreme Court in 2018 limiting access until after prosecution is concluded.
Although the open records law still defines "public agencies" to include "every state or local court or judicial agency," the courts and judicial agencies are not governed by the law under a 1978 ruling issued by the Kentucky Supreme Court in Ex Parte Farley.
Since these case files — which contain critical criminal evidence — are maintained by the courts, they are not "public records" subject to the open records law under the 1978 case (though some would suggest that this is an over-expansive reading of Ex Parte Farley).
This article indicates that the files were nevertheless accessible until the 2018 Supreme Court rule change.
On its face, this is not an open records law question. Control of court records rests in the courts.
But the suggestion that the evidence contained in the files is accessible under the open records law from law enforcement agencies or prosecutors at the conclusion of the case is, sadly,
somewhat misleading.
Recent stories by WDRB demonstrate that law enforcement is inclined to drag its feet in disclosing "records compiled in the process of detecting and investigating" violations of the law. This is true notwithstanding the three day agency response/production of records deadline that appears in the open records law at KRS 61.880(1).
See, for example:
https://www.wdrb.com/news/sunday-edition-kentucky-woman-battles-state-p…
It also suggests a reading of the open records law that pre-dates a 2013 opinion of the Kentucky Supreme Court, City of Ft. Thomas v Cincinnati Enquirer, in which the Court emphatically stated that the fact that an investigation or prosecution is ongoing does not automatically qualify all investigative records for protection from public disclosure.
In City of Ft. Thomas, the Court made abundantly clear that — upon receipt of a request for record in an open investigation file — it is incumbent on law enforcement agencies to examine the investigative records thus compiled and disclose any for which it cannot articulate actual concrete harm resulting from premature disclosure. To clarify, this duty applies to *open* investigative files.
The Court overruled a 1992 case, Skaggs v Redford, that had essentially read the requirement of a showing of harm in the statutory exception for records in an open investigation file — KRS 61.878(1)(h) — out of the law.
Nevertheless, law enforcement agencies continue to regularly apply the old "if its open, its closed" standard in responding to open records requests for records compiled in an investigation notwithstanding the 2013 case overruling that standard.
Moreover, the suggestion in the WDRB article that audio and video recordings in a closed case — recently requested under the open records law — will not be available until September reflects another impediment to access. Absent a detailed explanation for this ostensibly unwarranted delay, it is legally unsupportable.
And prosecutors files? They aren't accessible before, during, or after criminal prosecution under a 1992 amendment to the open records law —specifically, KRS 61.878(1)(h) — that extends permanent protection to those files. They are public records, but not open records, in perpetuity.
Much of the prosecutor's file mirrors the law enforcement agency's file, but the former enjoys permanent protection under the open records law.
Add to the mix a 2013 case — Kentucky New Era v City of Hopkinsville — which approved the practice of "categorical redaction" of certain information (names and identifying information relating to victims, witnesses, juveniles, and uncharged suspects) in certain records (in that case, incident/initial criminal reports) and you get a flavor for the impediments to access that exist in open records practice if not in the open records law.
And, finally, law enforcement has a "back up" confidentially provision in Chapter 17 of the Kentucky Revised Statutes — which is incorporated into the open records law — to which it often defaults in open records cases.
Ultimately, these competing/conflicting legal requirements reflect the tension between the need to ensure that a criminal investigation or prosecution is not prematurely disturbed/undermined and the public's right to know.
"The value of information is partly a function of time." This quotation is the counterpoint to the quotation that appears above: "Sunshine, sometimes it's delayed, but it's ultimately going to come."
And it reflects the competing interests that must be reconciled in cases involving access to criminal investigative and evidentiary records.
Accessing investigative records in an open criminal case may be possible under the open records law, but it is very rarely easy.
