A three member panel of the Kentucky Court of Appeals, consisting of Chief Judge Pamela Goodwine, Judge Glenn Acree, and Judge Joy Kramer, heard oral arguments today in an open records dispute that began in 2017 with a simple request submitted by Mike Maharrey to the Lexington Police Department for records relating to surveillance technologies used by the department.
Among other things, Maharrey requested purchase orders, receipts, written policies, training manuals, contracts, and memorandums of understanding relating to surveillance technologies including cell site simulators, automatic license plate readers, video and audio recording technologies, and drones.
Lexington-Fayette Urban County Government largely denied Maharrey's request, providing him with heavily redacted purchase orders but nothing else. In support, LFUCG cited a provision in Chapter 17 of the KRS authorizing nondisclosure of records that might threaten the safety of a law enforcement officer; KRS 61.872(6) authorizing denial of an open records request where disclosure would impose an unreasonable burden (on the theory that release of the requested records would necessitate immediate revision/replacement of surveillance technologies); and the homeland security exception (on the theory that disclosure of the requested records would be reasonably likely to further a terrorist attack).
Maharrey appealed LFUCG's denial of his request to the attorney general. In September 2017, the AG's staff issued an open records decision declaring that LFUCG failed to meet its burden of proving that it properly denied Maharrey 's request. That decision can be found at:
https://ag.ky.gov/orom/2017/17ORD179.doc
LFUCG subsequently sued Maharrey in the Fayette Circuit Court seeking reversal of the attorney general's open records decision. The ACLU stepped in to provide him with legal representation.
In June 2018, Fayette Circuit Judge John Reynolds affirmed the attorney general's decision, reasoning that LFUCG's argument that disclosure posed a safety risk was "far too abstract" to justify its denial of Maharrey's request.
The court granted Maharrey's motion for summary judgment. A copy of Judge Reynolds' opinion can be found at:
https://www.aclu-ky.org/sites/default/files/field_documents/2018.06.19_…
Dissatisfied with this outcome, LFUCG filed an appeal with the Court of Appeals seeking reversal of the Fayette Circuit Court's opinion.
Today's oral argument focused on whether summary judgment was properly granted given the existence of an apparent factual dispute concerning the sensitivity of the requested records and likelihood that their disclosure posed a threat to public safety. The judges expressed skepticism about the likelihood that a criminal could or would utilize the records to select his targets, avoid detection, and evade arrest and questioned whether LFUCG presented clear and convincing evidence of an unreasonable burden.
But the judges also raised concerns about whether the lower court gave sufficient consideration to an affidavit filed by a Lexington Police Department detective attesting to the sensitivity of the records and whether the court should have reviewed the records to confirm or refute LFUCG's position.
The issue is now submitted to the court for an opinion.
