Under the heading, "Credit Where Credit is Due," there is one major omission from this WDRB report on the Louisville mayor's request that the Kentucky State Police conduct investigations into misconduct by LMPD officers rather than LMPD itself—a request that any open government advocate questions and that we previously publicly questioned ourselves.
https://twitter.com/amyebensenhaver/status/1287821313906823169?s=10
Lawrence Trageser successfully appealed several KSP denials of his requests for trooper misconduct records. Like him or hate him—it's safe to say he really doesn't care — Trageser obtained a published opinion from the Court of Appeals on this very issue in March 2020.
http://opinions.kycourts.net/COA/2017-CA-000750.pdf
https://www.facebook.com/419650175248377/posts/672199413326784/?d=n
Twice declaring that the underlying open records decision issued by the attorney general in this open records dispute was "highly persuasive," the Court of Appeals affirmed the reasoning in 15-ORD-067, requiring public disclosure of "not only any preliminary documents that were expressly incorporated into the [agency's final action,] but any documents that formed the basis of the final agency action."
The Court held that under this reasoning, KSP is not permitted "to classify [internal affairs investigations into police misconduct as] preliminary and prevent their disclosure.
Here, City of Louisville [v Courier Journal] and 15-ORD-067 both demonstrate that internal affairs files do not maintain an indefinite preliminary status. The OAG and the circuit court correctly determined that KSP cannot rely on KRS 61.878(1)(i) and (j) as its basis for withholding the entirety of internal affairs investigative files.
"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 [except to the extent] that records containing the opinions and recommendations pertaining to discipline were not relied upon by the Commissioner."
Only the latter can be properly withheld.
As we wrote on May 1, when the Court of Appeals purposefully changed the "Not to be Published" designation to "To be Published:"
"The Court of Appeals originally designated the opinion 'Not To Be Published.' Under a rule of procedure, this meant the opinion —which reaffirms four decades of opinions limiting the scope of the preliminary documents exceptions to the open records law — could not be cited as precedent in any Kentucky court.
"With the change in designation to 'To Be Published,' the opinion joins the line of authority recognizing that investigative records that were at one time preliminary and inaccessible to the public, forfeit protection when final action — including the decision not to act — is taken.
"Reaffirming this position — which dates back to the early eighties and has been affirmed by the Kentucky Supreme Court but consistently ignored by KSP — in a *2020 published opinion* is tremendously important.
"Now there is current authority that can and should be cited as legal precedent in all cases involving access to investigative records relating to public employee misconduct — including but not limited to local law enforcement and state troopers.
"No more excuses for 'misremembering' this well-established legal authority."
Given the severe "heartburn" this line of authority causes some Kentucky attorneys general, this 2020 published appellate opinion is tremendously important in resolving the issue of access to police misconduct records, public employee misconduct records, and all records that are improperly shielded from public inspection by the preliminary documents exceptions.
This published appellate opinion—along with the published appellate opinion he recently obtained repudiating the City of Taylorsville's targeted Strategic Lawsuit Against Public Participation against him—make Trageser's contribution to the body of open records law impossible to overstate.
http://opinions.kycourts.net/coa/2019-CA-000152.pdf
https://www.facebook.com/kyopengovernment/posts/702772536936138
