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Photo of Naomi Judd from her website

The Tennessean reports that the family of country singer Naomi Judd filed an amended court petition in a Tennessee court on Friday to seal police reports and recordings made during the investigation into her death.

The family maintains that release of the records would inflict “significant trauma and irreparable harm.” 

“The petition asks the court to prohibit the Williamson County Sheriff’s Office from releasing the records for several reasons, among them that the disclosure would include her medical records and that the family has a right to privacy.”

The report points out that “Tennessee public records law generally allows local law enforcement records to be released, but •police have the discretion• to hold records while an investigation is ongoing. Once an investigation is closed, that exemption no longer applies.”

Assuming this to be an accurate statement of Tennessee’s public records law, we can  say that the letter of Kentucky’s public records law — although sadly not the implementation of the law — ensure broader rights of public access to law enforcement records in open investigation.

Kentucky law enforcement agencies •do not have unfettered discretion• to withhold records compiled in the process of detecting or investigating violations of the law simply  because their investigation or an enforcement action is open.

If I can’t convince you, perhaps this caption in a 2013 opinion issued by the Kentucky Supreme Court will:

“A Police Department's Investigatory File is Not Categorically Exempt From Disclosure Under the Open Records Act Merely Because it Pertains To a Prospective Enforcement Action.”

City of Fort Thomas v Cincinnati Enquirer

In City of Fort Thomas, the Court categorically rejected the city’s blanket denial of a 2009 request for records compiled by the Fort Thomas police department in its 2007 investigation of an incident in which Cheryl McCafferty was accused of killing her husband in their Fort Thomas home. 

In denying the request, the city relied on the  “law enforcement” exception, KRS 61.878(1)(h), authorizing nondisclosure of:

“[r]ecords of law enforcement agencies that were compiled in the process of detecting and investigating statutory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action.”

The Court ruled that — in addition to showing “that the records to be withheld were compiled for law enforcement purposes [and] that a law enforcement action is prospective,” the law enforcement agency may only invoke the law enforcement exception:

“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.”

KRS 61.878(1)(h), it should be noted, is the only exception to the open records law that contains this statement:  

“The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.”

This prompted past attorneys general to declare, “The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests have been met.”

Unfortunately, that resolve was honored in theory but not in practice as attorneys general regularly affirmed law enforcement denials of requests for open investigation records on the shakiest of grounds. That situation has gone from bad to worse in recent years. 

Compounding the problem is the existence of a statute enacted in the same year as the open records law as part of the “centralized criminal history record information system” found in Chapter 17 of the KRS. This system collects and manages "identifiable descriptions and notations of arrests, detentions, indictments, information, or other formal criminal charges and any disposition arising therefrom.”

KRS 17.150(2) has improperly been treated as an independent exception to the open records law for decades. Misapplication of the statute was exacerbated by the Supreme Court’s opinion in City of Fort Thomas. 

If a law enforcement agency could show no “actual, concrete harm” from premature disclosure of the record under KRS 61.878(1)(h) — based on the record’s content — the agency simply defaulted to KRS 17.150(2) — which the attorney general chose to treat as sufficient in itself as long as the agency states that an investigation is open. The agency need not indicate what is under investigation or to what end — much less how the case is active or what harm might flow from premature disclosure. 

KRS 17.150(2) has become the statute — erroneously treated as an exception — that swallows the Kentucky Supreme Court’s unequivocal interpretation in Fort Thomas that “A Police Department's Investigatory File is Not Categorically Exempt From Disclosure Under the Open Records Act Merely Because it Pertains To a Prospective Enforcement Action.”

But this injustice may soon be corrected. Oral argument is scheduled in the Kentucky Court of Appeals on August 23 in Courier Journal, Inc. v Shively Police Department. 

On appeal, the Courier asserts that KRS 61.878(1)(h) does not provide a valid basis for exclusion of records relating to the Shively Police Department’s investigation into a 2020 incident in which officers engaged in a high speed chase which resulted in three fatalities when a third car was hit by the vehicle being pursued. 

Specifically, the CJ argues that “(1) the requested disclosures will not harm the ongoing investigation; (2) privacy concerns do not justify not producing video footage of the fatal accident; and (3) KRS 17.150(2) does not apply at all as it only applies to determine what materials must be released after an investigation is concluded.”

A second case is proceeding through the Franklin Circuit Court — on a similar legal theory —  involving the denial of a request for investigative records in a 40+ year old case maintained in an “open status” by the Kentucky State Police based on KRS 17.150(2). 

Ashley Gruner v Kentucky State Police, Franklin Circuit Court, Civil Action No. 22-CI-00039.

Can we therefore affirmatively state that Kentucky’s open records law affords the public broader rights of access to open investigation records than Tennessee’s law? 

In theory, but not in practice. But all of that may soon change.