Is there any legally defensible argument supporting Louisville Metro Police Department's reliance on the preliminary documents exceptions to the open records law to partially deny The Courier Journal's request for investigative files that led to the firing of detectives Myles Cosgrove and Joshua Jaynes and the sanctioning of three other officers connected with the March 13, 2020, raid that ended in Breonna Taylor's death?

Or is it crystal clear in the law that

when LMPD concludes an investigation "either with disciplinary action or a decision not to take any action, they have to give The Courier the file, the entire thing. They can't artificially limit what they release"?

Nothing would makes us happier than to say that LMPD's position is legally indefensible and that the public is entitled to all preliminary records once final action is taken or a decision is made to take no action.

But the answer to these questions is more nuanced.

The "preliminary documents" exceptions to the open records law — KRS 61.878(1)I) and (j) —authorize nondisclosure of "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" and "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."

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

Through the years, Kentucky's courts — and in turn, the Kentucky Attorney General — have treated the two exceptions — rightly or wrongly — as one and construed them, by in large, to authorize nondisclosure of predecisional, deliberative records, that are not adopted as the basis of final action or the decision to take no action.

(Past Attorneys General have made at least some effort to parse the language of the exceptions, to strictly construe them as two separate exceptions rather than one, and to distinguish fact from opinion.)

Advocates at either end of the spectrum argue for absolutes. Access advocates argue that once final action is taken, or a decision is made to take no action, all preliminary documents are open. Final action triggers forfeiture of statutory protection.

Public agencies, particularly the University of Kentucky, argue that "nothing in KRS 61.878(1)(i) and (j) states that preliminary materials ever lose their preliminary status." Based on their interpretation of the exceptions, final action does not alter their protected status.

The Kentucky Supreme Court explicitly rejected the University's "forever preliminary" position in an opinion issued last month: University of Kentucky v The Kentucky Kernel.

http://opinions.kycourts.net/sc/2019-SC-0468-DG.pdf?fbclid=IwAR3h-PrriV…

Rejecting the University's claim that an investigative file involving a professor accused of sexually harassing multiple students were shielded from disclosure by the preliminary documents exceptions, the Court held that records in the file "that were once preliminary in nature lost that exempt status when the University agreed to end the investigation and proceedings by accepting the professor's resignation and entering into a separation agreement."

In support, the Court cited a line of authority dating back to the early eighties, recognizing that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action."

The Kentucky Court of Appeals reaffirmed this position one year earlier, almost to the day.

https://cases.justia.com/kentucky/court-of-appeals/2020-2017-ca-000750-…

In Kentucky State Police v Lawrence Trageser, the court held that:

"KSP cannot rely on KRS 61.878(1)(i) and (j) as its basis for withholding the entirety of internal affairs investigative files. However, that same statutory authority does provide KSP with a limited authority to withhold portions of the file concerning any disciplinary recommendations or opinions not relied upon by the Commissioner in his final decision.

"We affirm the circuit court's finding that the analysis of documents under KORA does not end once the documents have been classified under the preliminary exception. We also affirm the finding that records containing the opinions and recommendations pertaining to discipline that were not relied upon by the Commissioner in the investigation can be properly withheld by KSP."

Neither the "forever preliminary" nor the "never preliminary" (after final action is taken or a decision is made to take no action) is correct under longstanding interpretation of the preliminary documents exceptions to the open records law.

There is great concern that lawmakers intend to codify the "forever preliminary" position by amending the existing exceptions in future legislative sessions, eliminating the public's right to examine records that are critical to our understanding of how officials arrive at the final actions they take on issues of broad public concern.

A failed attempt in 2019 and allusions to efforts in 2021 suggest that this threat is very real.

For now, the open records law supports the public's right of access to preliminary records that form, or are adopted as, the basis of final agency action or the agency's decision to take no action as well as those that are incorporated into or physically attached to that action or decision not to act.

Unless, that is, The Courier takes on a second legal challenge in less than a week and succeeds in convincing an appellate court to reverse its prior interpretation of the preliminary documents exceptions in favor for unfettered public access. . .

. . . or the General Assembly beats the courts to the punch and manages to enact a "forever preliminary" exception to the open records law — a deeply disturbing but very real threat.