22-ORD-228
August 28, 2023
In re: Rachel Gholson/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) violated the Open
Records Act (“the Act”) when it failed to respond to a request to inspect
records within five business days. However, KSP did not violate the Act
when it withheld from inspection under KRS 17.150(2) intelligence and
investigative reports regarding a criminal case in which the prosecution
has not concluded.
Open Records Decision
On July 20, 2023, Rachel Gholson1 (“the Appellant”) submitted a request to
KSP to inspect the Computer Aided Dispatch (“CAD”) report, 911 calls, and all audio
and video files related to a specific criminal case. On July 29, 2023, KSP partially
denied the request under KRS 17.150(2) because the criminal investigation was
ongoing and the prosecution had not yet concluded. However, KSP provided the
Appellant a copy of the Kentucky Incident-Based Reporting System (“KYIBRS”)
report associated with the case. This appeal followed.2
1
After this appeal was initiated, the Office received several emails from a person who refused to
provide his last name, claimed to have filed this appeal, and demanded a decision. When this person
finally disclosed his last name, the Office determined he was the subject of the records at issue in this
appeal, but he had not filed the appeal. Rather, his wife filed this appeal. Moreover, he is not a
Kentucky resident because he resides in Florida, according to the record KSP provided the Appellant.
See KRS 61.870(10). The Office does not discuss any pending Open Records appeal with non-parties to
the appeal.
2
The Appellant also claims KSP failed to respond to her request from March 2023. However, the
Appellant did not provide a copy of that request. Therefore, any dispute involving that request is not
properly before the Office. See KRS 61.880(2)(a) (requiring a person claiming not to have received a
response to a request to inspect records to provide the Office a copy of the request and a statement
that no response was received).Upon receiving a request for records under the Act, a public agency “shall
determine within five (5) [business] days . . . after the receipt of any such request
whether to comply with the request and shall notify in writing the person making the
request, within the five (5) day period, of its decision.” KRS 61.880(1). In its response,
KSP acknowledged receiving the request on July 21, 2023, but the response was dated
July 29, 2023, which was a Saturday. On appeal, KSP does not claim the date of its
response is inaccurate. Because KSP received the request on July 21, 2023, its
response was due five business days later on July 28, 2023. However, KSP issued its
response one day late, and therefore, it violated the Act.
Regarding the merits of the Appellant’s appeal, there are two so-called “law
enforcement exemptions” to the Act. The first, KRS 61.878(1)(h), exempts from
inspection “[r]ecords of law enforcement agencies . . . that were compiled in the
process of detecting and investigating statutory or regulatory 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 other exemption states “[i]ntelligence and
investigative reports maintained by criminal justice agencies are subject to public
inspection if prosecution is completed or a determination not to prosecute has been
made.” KRS 17.150(2) (emphasis added). Although it does not appear in the Act itself,
KRS 17.150(2) is incorporated by reference under KRS 61.878(1)(l), which exempts
from inspection “[p]ublic records or information the disclosure of which is prohibited
or restricted or otherwise made confidential by enactment of the General Assembly.”
The Office has explained the difference between these two exceptions in
numerous decisions.3 See, e.g., 21-ORD-098; 20-ORD-139; 20-ORD-104. Briefly
stated, KRS 17.150(2) applies only to “intelligence and investigative reports” of
“criminal justice agencies,” i.e., law enforcement agencies, and only if criminal
prosecution has not concluded. See, e.g., 20-ORD-090 (holding the completion of a
prosecution or a decision not to prosecute is “a condition precedent to public
inspection” of records within the scope of KRS 17.150(2)). If a decision not to prosecute
has been made, 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
3
A recent decision of the Kentucky Court of Appeals has called into doubt the Office’s decades-long
interpretation of KRS 17.150(2). See Courier-Journal, Inc. v. Shively Police Dep’t, No. 2021-CA-1120,
2022 WL 16842295 (Ky. App. Nov. 10, 2022) (decision not final). But that decision is not yet final, and
thus is not binding on the Office, because the Supreme Court of Kentucky has granted discretionary
review in the case. Shively Police Dep’t v. Courier-Journal, Inc., No. 2023-SC-0033 (Ky.) (discretionary
review granted Aug. 16, 2023). Accordingly, the Office’s interpretation of KRS 17.150(2) remains
unchanged, unless and until overruled by the Supreme Court.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.
KRS 61.878(1)(h), on the other hand, applies to a broader category of law
enforcement records. First, it is not limited to “intelligence and investigative reports,”
unlike KRS 17.150(2). Second, it also applies to investigations conducted by
administrative agencies in connection with investigating the violations of regulatory
provisions. Put another way, all KRS 17.150(2) records are also KRS 61.878(1)(h)
records, but not all KRS 61.878(1)(h) records are KRS 17.150(2) records.
If an agency relies on KRS 61.878(1)(h), it must prove the exception applies,
which requires the agency to articulate the “harm” that will affect the law
enforcement investigation. In City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d
842 (Ky. 2013), the Supreme Court of Kentucky held that investigative files of law
enforcement agencies are not categorically exempt from disclosure under
KRS 61.878(1)(h). Rather, when a record pertains to a prospective law enforcement
action, KRS 61.878(1)(h) “is appropriately invoked only 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.” Id. at 851.
The Court did not address the application of KRS 17.150(2) because the subject
of the investigation had already been prosecuted to conviction. See id. at 846.
Notwithstanding the agency’s claim that the convicted defendant could still seek post-
conviction relief, the Court found the agency had not satisfied its burden under
KRS 61.878(1)(h). Id. at 852. As explained above, KRS 17.150(2) provides that
“[i]ntelligence and investigative reports maintained by criminal justice agencies are
subject to public inspection if prosecution is completed or a determination not to
prosecute has been made.” The fact that KRS 17.150 only applies before a prosecution
has concluded, and that it further does not require a “showing of harm,” is a
recognition that the premature release of information prior to a criminal trial could
damage either the criminal defendant, the Commonwealth, or both. That is because
the criminally accused are afforded certain rights that are not available to thosefacing administrative discipline. For example, the criminally accused have the right
to a fair and impartial jury, and the Commonwealth and the defendant both have an
interest in witnesses not having access to evidence that could change their testimony.
Under KRS 17.150(2), the question of “harm” is secondary to the question, “Has
the prosecution concluded?” If the prosecution has not concluded, then it is evident
that premature release of records into the public sphere may affect the impartiality
of potential jurors or provide an opportunity for witnesses to change their testimony.
That is why the General Assembly enacted KRS 17.150(2) and limited its application
to criminal prosecutions. If the prosecution is over, or a decision not to prosecute has
been made, then any concerns about fair and impartial juries or changes to witness
testimony are no longer relevant. But the records may also be used in other
prospective law enforcement actions unrelated to criminal prosecution, such as an
administrative investigation into police misconduct. Therefore, the records may still
be exempt under KRS 61.878(1)(h), but to properly invoke this exemption, a public
agency must articulate a concrete risk of harm to the investigation that will occur if
the records are released. City of Ft. Thomas, 406 S.W.3d 842.
Here, KSP claims the criminal case is ongoing and prosecution has not
concluded. Indeed, the Appellant admits prosecution is ongoing because the reason
she requested these records was to assist her husband in defending himself, pro se,
from the criminal charges. The Appellant claims KSP’s refusal to provide the records
violates her husband’s constitutional rights, but this is not so. A criminal defendant
need not rely on the Act to obtain copies of records exempt under KRS 17.150(2) or
KRS 61.878(1)(h) because he or she may obtain any relevant documents in the
possession, custody, or control of the Commonwealth through discovery under the
Kentucky Rules of Criminal Procedure.4 See RCr 7.24(2); see also 22-ORD-059 (noting
criminal defendants are entitled to records pertaining to their case through the
discovery rules applicable to criminal cases, but not through the Act). Simply put, the
Office has already found CAD reports qualify as “intelligence and investigative
reports” under KRS 17.150(2), and therefore, are not subject to inspection until the
4
The Appellant also claims KSP provided these records to others who asked for them, and therefore,
KSP must provide them to her. In response, KSP admits it released only the CAD report and 911 audio
recordings in response to a request it received a few days earlier. KSP, however, states it released
those records in error and it did not release all records related to the case. KSP argues it should not
be required to “compound” its original error by continuing to release otherwise exempt records. Given
the Appellant’s husband has other means to access these records, the Office agrees that KSP is not
barred from withholding them under KRS 17.150(2) simply because of its previous error. See
Edmondson v. Alig, 926 S.W.2d 856, 859 (Ky. App. 1996) (requiring the release of otherwise exempt
information as a sanction against a public agency for failure to comply with the procedural
requirements of the Act is reversible error).prosecution concludes or a decision declining prosecution is made. See, e.g., 20-ORD-
106; 17-ORD-144; 11-ORD-171. The same is true for recordings of 911 calls, see, e.g.,
21-ORD-194; 15-ORD-123, as well as audio and video recordings intended to be used
at trial, see, e.g., 20-ORD-104; 07-ORD-095; 04-ORD-234. Such records will remain
exempt until the prosecution concludes or a decision not to prosecute is made.
Accordingly, KSP did not violate the Act by denying the Appellant’s request to inspect
these records under KRS 17.150(2).
A party aggrieved by this decision may appeal it by initiating an 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
#337
Distributed to:
Rachel Gholson
Michelle Harrison
Stephanie Dawson