23-ORD-018
January 31, 2023
In re: Joshua Powell/Lexington Police Department
Summary: The Lexington Police Department (“the Department”)
violated the Open Records Act (“the Act”) when its initial response to a
request failed to explain how KRS 17.150(2) applied to withhold records.
On appeal, the Department has carried its burden of proving that some
of the intelligence reports are exempt under KRS 17.150(2) because
those reports may be used in a prospective law enforcement action in
which no decision has been made regarding future prosecution.
However, the Department has not carried its burden of proving that
KRS 17.150(2) allowed it to withhold other records.
Open Records Decision
On behalf of his client, Joshua Powell (“the Appellant”) submitted a request to
the Department seeking copies of emails or correspondence among Department
employees in which “the topic of” his client “or [the] trial” of his client “was discussed
in any manner.” The Department notified the Appellant it did not possess any records
related to the “trial” of his client, but it did locate records in which his client was
discussed. The Department stated the records would be withheld under
KRS 17.150(2)(c) and (d); though it quoted the statutory text, it did not specify how
the exemptions applied to the records it withheld. This appeal followed.
KRS 17.150(2) exempts from inspection “intelligence and investigative reports”
of “criminal justice agencies,” i.e., law enforcement agencies, but only if criminal
prosecution has not concluded.1 If a decision not to prosecute has been made, or if the
1
The Appellant relies heavily on a recent Court of Appeals decision, Courier–Journal, Inc. v. Shively
Police Dep’t, No. 2021-CA-1120 (Ky. App. Nov. 10, 2022) (not yet final). However, that decision is notprosecution has concluded, the records may still be exempt from inspection if one of
the conditions of KRS 17.150(2)(a)–(d) applies. For example, even if no prosecution
occurs, the law enforcement agency may still redact or withhold information that
would reveal the identity of a confidential informant. KRS 17.150(2)(a). If a public
agency denies inspection of records under KRS 17.150(2), it must explain its denial
“with specificity.” KRS 17.150(3). This “specificity” requirement requires the public
agency to explain that a prosecution is ongoing, or a decision declining prosecution
has not been made. Or, if prosecution has been declined and one of the conditions in
KRS 17.150(2)(a)–(d) applies, the agency must state with specificity how one of those
four conditions permits the agency to continue to deny inspection of the records.
In his request, the Appellant notified the Department that a criminal
prosecution of his client had ended in the client’s acquittal, and the Department did
not dispute that claim in its response. Thus, responsive intelligence and investigative
reports could only be withheld if one of the conditions in KRS 17.150(2)(a)–(d) applied.
The Department was required under KRS 17.150(3) to specify how one of those
exceptions applied to continue to withhold records, but it only parroted the text of
KRS 17.150(2)(c) and (d). KRS 17.150(2)(c) allows a law enforcement agency to
continue withholding an intelligence report even after prosecution has concluded if
disclosure of the report would “endanger the life or physical safety of law enforcement
personnel.” But the Department did not provide any information about the records
specifying how their contents would harm law enforcement.
Moreover, KRS 17.150(2)(d) allows a law enforcement agency to withhold
intelligence reports if they will be used in “a prospective law enforcement action”
separate from the prosecution that had concluded. But here, the Department did not
provide any information about any alleged separate and prospective law enforcement
action. Rather, the Department’s response, in which it failed to describe the records
withheld and merely parroted the text of the exemption on which it relied, was
“limited and perfunctory,” in violation of the Act. See Edmondson v. Alig, 926 S.W.2d
856, 858 (Ky. App. 1996).
On appeal, the Office asked the Department to provide the records it withheld.
See KRS 61.880(2)(c). Although the Office cannot fully disclose the content of these
records, it is helpful to categorize them based on the topics of the purported
yet final and a motion for discretionary review is currently pending before the Supreme Court of
Kentucky. See Shively Police Dep’t v. Courier–Journal, Inc., No. 2023-SC-0033 (motion for
discretionary review filed Jan. 19, 2023). Accordingly, the Court of Appeals’ decision does not bind the
Office’s decision in this case.“prospective law enforcement actions” for which the Department alleged they will be
used.
In one category, the Appellant’s client was the subject of a call alleging a
domestic disturbance to which Department officers responded. These records indicate
the Appellant’s client was not arrested in connection with this investigation, and
there is no indication from these records that he would be prosecuted in the future
for this event. Some of the records are emails containing a report solely about this
incident,2 and other records included this incident among others in what could be
described as a list containing summaries of various investigations. As for the records
containing a list of summaries of various investigations, all the summaries not
related to the Appellant’s client are unresponsive to the request and may be redacted.
See KRS 61.878(4). But the summary pertaining to the domestic disturbance call, and
the records that are solely about the domestic disturbance call, are not exempt under
KRS 17.150(2). The records themselves indicate the investigation concluded without
arrest or a plan to prosecute, and the Department has not specified how these records
will be used in a potential law enforcement action against the Appellant’s client. Nor
is there any indication law enforcement personnel would be endangered if these
records were provided to the Appellant. Accordingly, the Department violated the Act
by withholding these records.
The other category of records do appear related to a separate “prospective law
enforcement action” regarding a vehicle fleeing the scene of an accident. The records
indicate that a decision to prosecute that crime has not yet been made. Release of this
information could result in the suspect of that crime being notified he or she is a
suspect. Moreover, the reports contain information about witnesses’ recollection of
events. Accordingly, the Department properly withheld these records under
KRS 17.150(2)(d).
Finally, the Department withheld one record it describes as “an intra-agency
email exchange between detectives summarizing the findings of a review of a specific
social media account as part of an ongoing criminal investigation.” The Department
withheld this record under KRS 17.150(2)(d) “because the premature release could
2
The Department describes the records that contain information only about this investigation as
reports regarding gang activity. The Department claims that release of this information would
endanger officer safety. Although the subject line of the email containing the report refers to it as
“gang intelligence,” the report itself does not contain any information about specific gangs or gang
activity. One sentence in the report mentions an “alert” about gang activity without providing specifics.
But it does not contain any information that would appear to endanger officer safety. The report
appears to be similar to a CAD report, but containing more personally identifying information.alert persons not yet charged with a crime to the fact that they are considered a
suspect in a crime, making it difficult to further the criminal investigation.” This
record does not appear related to either the domestic disturbance investigation or the
investigation regarding the fleeing vehicle. The record contains discussions among
law enforcement officials regarding evidence obtained from social media accounts,
and the Department claims no prosecutorial decision has been made regarding that
investigation. Because this record contains a description of evidence that may be used
in a potential law enforcement action in which no prosecutorial decision has been
made, the Department properly withheld this record under KRS 17.150(2)(d).
In sum, the Department violated the Act when its “limited and perfunctory”
response to the Appellant’s request failed to explain how KRS 17.150(2) applied to
the records withheld. After reviewing the withheld records, the Office finds the
records regarding the investigation of a domestic disturbance cannot be withheld
under KRS 17.150(2)(d) because those records on their face indicate no prosecution
will occur with respect to that investigation. Moreover, for those records containing a
summary of both the domestic disturbance investigation and other investigations,
information related to the other investigations must be redacted under KRS 61.878(4)
because that information is not responsive to the request and could be related to other
prospective law enforcement actions. However, the Department is authorized to
withhold the other records under KRS 17.150(2) because those records do indicate a
potential law enforcement action and the Department has stated that no
prosecutorial decision has been made with respect to those records.
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General#424
Distributed to:
Joshua Powell
Emilee Buttrum