23-ORD-345
December 28, 2023
In re: Kenneth Tracy/City of Frankfort
Summary: The City of Frankfort (“the City”) violated the Open Records
Act (“the Act”) when it denied a request for records without explaining
how the exception on which it relied applied to the records withheld.
Open Records Decision
On November 10, 2023, Kenneth Tracy (“the Appellant”) submitted a request
to the City for records belonging to the Frankfort Police Department. Specifically, he
sought a “copy of any and all records available with respect to the complaint and
arrest of” an identified individual who had been arrested earlier that day. On
November 14, 2023, the City issued a response denying the request under
KRS 61.878(1)(h) because “the incident is still an active investigation.” The City
advised the Appellant he could obtain the records after the criminal matter had been
“adjudicated by the courts.” This appeal followed.
Within five business days of receiving a request for records under the Act, a
public agency shall determine whether it will grant or deny the request. See
KRS 61.880(1). If it denies the request, the public agency must cite an applicable
exception and “briefly explain” how it applies to the records withheld. Id. Here, the
City cited KRS 61.878(1)(h) as the basis for denial, which 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 or administrative adjudication.” The Supreme Court of
Kentucky has held that when a public agency relies on KRS 61.878(1)(h) to deny
inspection, it must “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 agencyin the prospective action.” City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842,
851 (Ky. 2013).
On appeal, the City admits its response was deficient because it did not
articulate a concrete risk of harm to the law enforcement investigation. In its defense,
the City explains the Appellant submitted his request the same day the subject of the
request had been arrested and the City had not yet had an opportunity to review the
records that had just been created when it received the request on November 13.
Accordingly, it could not yet determine whether the release of the records would harm
the criminal investigation. Nevertheless, the City had five business days from receipt
of the request to obtain the records, review them, and determine whether their
release would pose a concrete risk of harm to its investigation. Instead, it issued a
“limited and perfunctory” response. Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky.
App. 1996). Accordingly, the City violated the Act.1
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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
#537
Distribution:
Kenneth Tracy
Tara Clemmons
Laura Milam
Chermie Maxwell
1
The City continues to “temporarily” withhold some records because it has not yet received word
from the prosecutor as to whether their release would harm the investigation. The City must explain
to the Appellant, in concrete terms, how release of these remaining records will harm its investigation
or provide him with the records forthwith.