Shively Police Department v. Courier Journal, Inc. ( 2024 )

RENDERED: SEPTEMBER 26, 2024
TO BE PUBLISHED
Supreme Court of Kentucky
2023-SC-0033-DG
SHIVELY POLICE DEPARTMENT APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2021-CA-1120
JEFFERSON CIRCUIT COURT NO. 20-CI-005707
COURIER JOURNAL, INC. APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
After a prolonged, four-year dispute over public records maintained by
the Shively Police Department (“SPD”), and requested by the Courier-Journal,
Inc. (“Courier Journal”) pursuant to the Open Records Act, SPD appeals to this
Court from an adverse decision of the Court of Appeals. Among its several
issues, SPD asks this Court to consider whether it properly invoked the “law
enforcement exemption” to the Open Records Act when it categorically denied
the Courier Journal’s request for public records on the sole basis that those
records pertained to an ongoing criminal case. Having reviewed the record, the
applicable law, and the arguments of the parties, we hold that SPD has not
proven that it adequately complied with the Open Records Act in this instance.
Accordingly, this Court affirms the Court of Appeals and remands to the
Jefferson Circuit Court.
I. FACTS AND BACKGROUND
Two SPD officers sped northbound down Jefferson County’s Dixie
Highway for about a mile. The fleeing truck the officers were chasing crossed
into the southbound lane, ran a red light, and struck a car traveling eastbound
at the intersection of Crums Lane and Dixie Highway. All three passengers of
that car, a forty-four-year-old woman, a twenty-one-year-old man, and a nine-
month-old infant, died as a result of injuries they sustained in the crash.
Just minutes before the fatal crash, the night of July 27, 2020, the two
SPD officers had been responding to the report of a potential domestic violence
incident between a man and a woman near a light-colored Nissan truck parked
outside of a restaurant off Dixie Highway. When the officers arrived at the
scene, they approached a truck matching that description, the truck sped off,
and the two officers gave chase. After the ensuing pursuit had ended in fatality,
two occupants of the truck fled on foot. A seventeen-year-old juvenile male,
believed to be the passenger of the truck, was apprehended. A man believed to
be the driver of the truck, twenty-year-old Guy Brison, was arrested four days
later.
According to the record, SPD’s internal policies authorize its officers to
pursue a fleeing vehicle only in instances involving a life-threatening
emergency or if officers have probable cause to believe that the fleeing suspect
has committed a serious violent felony. The day after the crash, SPD issued a
press release stating that the officers had pursued the fleeing truck because
they believed the reported domestic violence victim may have been inside the
2
vehicle and in need of assistance. SPD later publicly confirmed that the
pursuing officers had indeed complied with SPD’s vehicle pursuit policies.
According to the Courier Journal, the content of SPD’s internal vehicle
pursuit policies caused the newspaper to question SPD’s public vindication of
its own officers, and, as a result, the Courier Journal requested multiple public
records from SPD pursuant to the Open Records Act. See KRS 61.870–884. The
Courier Journal specifically sought (1) computer aided dispatch (“CAD”) reports
related to the initial domestic violence report and the fatal collision; (2) related
911 calls; (3) recorded audio communications involving the officers that
pursued the fleeing truck, including their communications with dispatchers
and their supervisory personnel; (4) dashcam and bodycam footage from the
time the officers were dispatched to the time the first fleeing suspect was
apprehended; and (5) related incident and accident reports. 1 Within thirty-six
minutes of receiving the Courier Journal’s open records request, on August 10,
2020, SPD denied the request in full and supported its denial with a single
sentence: “As there is an active criminal case regarding this incident, all of the
above request are denied under the following exclusion rule: KRS 61.878
subsection (1)(h)[.]” 2
Often referred to as the “law enforcement exemption” to the Open
Records Act, KRS 61.878(1)(h) exempts from mandatory public disclosure those
1 The Courier Journal requested these records in five individual open records
requests, but the parties have treated the requests as one encompassing request for
purposes of this litigation.
2 SPD’s denial email also quoted the entire text of KRS 61.878(1)(h).
3
“[r]ecords of law enforcement agencies . . . that were compiled in the process of
detecting and investigating statutory . . . violations if the disclosure of the
information would harm the agency by . . . premature release of information to
be used in a prospective law enforcement action[.]” 3 This Court has previously
interpreted the law enforcement exemption to be properly 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.” City of Fort Thomas v. Cincinnati Enquirer,
406 S.W.3d 842, 851 (Ky. 2013). “A concrete risk, by definition, must be
something more than a hypothetical or speculative concern.” Id.After receiving SPD’s rapid and nondescript denial of its open records
request, the Courier Journal sought an injunction in Jefferson Circuit Court
ordering SPD to immediately turn over the public records it had requested. See
KRS 61.882(1)–(2). In its Answer to the Courier Journal’s Complaint, SPD again
maintained that the requested records were exempt from mandatory disclosure
pursuant to the law enforcement exemption. As support for that contention,
SPD proffered an affidavit from its Chief of Police, Colonel Kevin Higdon, in
which he attested that the records “are part of evidence that will be used for
the Commonwealth Attorney to make a decision whether or not further
prosecutorial action will be taken following a criminal investigation,” and that
3 The full text of KRS 61.878(1)(h) also exempts certain records maintained by
agencies engaged in administrative adjudications, as well as records maintained by
county attorneys and Commonwealth’s Attorneys.
4
“the release of these records poses a concrete risk of harm to the SPD and
Commonwealth’s Attorney in the prospective action and may hinder the
agency’s investigation.”
SPD further supported its denial of the Courier Journal’s open records
request by citing two other exemptions to the Open Records Act, KRS
61.878(1)(a), which exempts from disclosure records “containing information of
a personal nature where the public disclosure thereof would constitute a
clearly warranted invasion of personal privacy,” and KRS 61.878(1)(l), which
exempts records “the disclosure of which is prohibited or restricted or
otherwise made confidential by enactment of the General Assembly[.]”
Pertaining to the latter exemption, SPD contended that KRS 17.150(2), a
statute residing in a section of the code devoted to “Criminal Records and
Statistics,” allowed it to withhold the requested records. KRS 17.150(2) states
specifically that, “Intelligence 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.”
In June 2021, the parties filed competing motions for summary
judgment, and, in September 2021, the circuit court issued an order granting
in part and denying in part the Courier Journal’s Motion for Summary
Judgment. Relevant to this appeal, in the portion of the circuit court’s order
denying summary judgment, the court ruled that SPD had met its burden of
proof under the law enforcement exemption and, thus, the records the Courier
Journal had requested in August 2020 were exempt from disclosure pursuant
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to KRS 61.878(1)(h). 4 The circuit court ruled that it need not consider whether
SPD was entitled to withhold the requested records pursuant to the “personal
privacy exemption” or KRS 17.150(2).
The Courier Journal appealed the circuit court’s ruling to the Court of
Appeals, which reversed the circuit court in November 2022. See Courier-
Journal, Inc. v. Shively Police Department, No. 2021-CA-1120-MR, 2022 WL
16842295 (Ky. App. Nov. 10, 2022). The Court of Appeals specifically held that
SPD had not sufficiently demonstrated that the records at issue were exempted
from disclosure under the law enforcement exemption, the personal privacy
exemption, or under KRS 17.150(2). Accordingly, the Court of Appeals vacated
the portion of the circuit court’s order granting summary judgment in favor of
SPD and denying summary judgment as to the Courier Journal, and remanded
for further proceedings regarding the release of the requested records. The
4 The portion of the circuit court’s order granting summary judgment in favor of
the Courier Journal pertained to a separate request for public records that the Courier
Journal filed with SPD in July 2021. According to the circuit court’s order, the Courier
Journal had requested records regarding SPD officer commendations, complaints, and
sanctions, as well as SPD’s vehicle pursuit policy. Although the circuit court ordered
SPD to produce the records described in the July 2021 request, the parties note, and
the record reflects, that the Courier Journal never sought to amend its Complaint to
reference its July 2021 request. It appears only that the Courier Journal referenced
the July 2021 request during an oral argument on the parties’ competing motions for
summary judgment, and filed a Plaintiff’s Notice of Filing Additional Authority with
SPD’s denial of that request attached. From our review of the record, it does not
appear that the Courier Journal sought for the circuit court to issue a ruling regarding
its July 2021 request, but merely referenced the request to illustrate that SPD had
repeatedly denied additional requests for public records. Regardless, SPD notes that it
chose not to appeal the portion of the circuit court’s order pertaining to the July 2021
request, and instead complied with the order to produce those requested records. The
Courier Journal, likewise, indicates that SPD did indeed produce those records. As
such, the portion of the circuit court’s order granting summary judgment in favor of
the Courier Journal is not before this Court.
6
Court of Appeals recommended that the circuit court conduct an in camera
review of the requested records on remand.
This Court thereafter granted SPD’s Motion for Discretionary Review.
II. STANDARD OF REVIEW
Our appellate standard of review of a trial court’s ruling on a motion for
summary judgment is “whether the record, when examined in its entirety,
shows there is no genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law.” Bruner v. Cooper, 677 S.W.3d 252,
269 (Ky. 2023) (quoting Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky.
2010)). “[W]e generally review the grant of summary judgment without
deference to either the trial court’s assessment of the record or its legal
conclusions.” Id. Further, we reiterate that this Court reviews issues
concerning the statutory construction of the Open Records Act, de novo. City of
Fort Thomas, 406 S.W.3d at 849.
III. ANALYSIS
The General Assembly has declared that the “free and open examination
of public records is in the public interest[.]” KRS 61.871. As such, “[a]ll public
records shall be open for inspection by any resident of the Commonwealth,
except as otherwise provided by [the Open Records Act.]” KRS 61.872(1).
The free and open examination of public records “may reveal whether the
public servants are indeed serving the public, and the [Open Records Act’s]
policy of disclosure provides impetus for an agency steadfastly to pursue the
public good.” Ky. Bd. of Exam’rs of Psychs. & Div. of Occupations & Pros., Dept.
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for Admin. v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 328 (Ky.
1992). “However, the right to examine public records is not absolute[.]” Univ. of
Ky. v. Kernel Press, Inc., 620 S.W.3d 43, 52 (Ky. 2021). The Open Records Act,
accordingly, provides that certain categories of public records are excepted or
exempted from its mandatory disclosure provisions. See KRS 61.878(1)(a)–(s).
Even so, the General Assembly has stated that these exemptions “shall be
strictly construed.” KRS 61.871.
When a public agency invokes an Open Records Act exemption, thereby
denying the public access to its own records, the agency’s obligations in that
circumstance are clear. Kernel Press, Inc., 620 S.W.3d at 52. The agency “shall
include a statement of the specific exception authorizing the withholding of the
record and a brief explanation of how the exception applies to the record
withheld.” KRS 61.880. “The agency’s explanation must be detailed enough to
permit the court to assess its claim and the opposing party to challenge it.” Ky.
New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013). These
requirements apply equally to each record requested from the agency.
Accordingly, in instances where the requester poses a voluminous
request, seeking multiple public records, the agency is not permitted to wholly
deny the request without differentiating between the particular kinds of records
it holds. Kernel Press, Inc., 620 S.W.3d at 54–55 (holding that public agency
improperly treated an entire 470-page investigative file as one record unable to
be separated or compartmentalized). In fact, the General Assembly requires
that “[i]f any public record contains material which is not excepted under [the
8
Open Records Act], the public agency shall separate the excepted and make the
nonexcepted material available for examination.” KRS 61.878(4). While “[t]he
agency is not required to justify nondisclosure on a line-by-line or even
document-by-document basis,” the agency may comply with the Open Records
Act by categorizing its records and explaining how each category is exempted
from disclosure. Kernel Press, Inc., 620 S.W.3d at 54 (citing City of Fort
Thomas, 406 S.W.3d at 851). 5 Further, the burden of proving that a public
record is exempted from mandatory disclosure falls upon the agency asserting
the exemption. City of Hopkinsville, 415 S.W.3d at 81 (citing KRS 61.882(3)).
A. The Law Enforcement Exemption
On appeal, SPD asserts that the circuit court’s grant of summary
judgment was appropriate because the law enforcement exemption, KRS
61.878(1)(h), permits it to withhold the records requested by the Courier
Journal as a matter of law. We disagree.
This Court has previously interpreted the law enforcement exemption to
require an agency invoking the exemption to “show (1) that the records to be
withheld were compiled for law enforcement purposes; (2) that a law
enforcement action is prospective; and (3) that premature release of the records
would harm the agency in some articulable way.” City of Fort Thomas, 406
S.W.3d at 850. The mere existence or prospect of a law enforcement action is
5 We note that SPD’s initial letter denying the Courier Journal’s open records
request was deficient in this respect. Rather than individually or categorically assess
each of the records requested by the newspaper, SPD issued a “blanket” rationale for
why the entirety of the Courier Journal’s request was exempt from disclosure.
9
alone an insufficient basis to withhold public records pursuant to this
exemption; there must be some potential for harm associated with the
premature release of the agency’s records. As aforementioned, this risk of harm
must be concrete, amounting to “something more than a hypothetical or
speculative concern.” Id. at 851.
Applying this standard, we note preliminarily that SPD’s initial denial of
the Courier Journal’s open records request was statutorily infirm. SPD’s initial
denial letter made no attempt to explain how public inspection of the requested
records would harm the agency’s investigative or prosecutorial efforts. Rather,
SPD’s initial denial briefly stated, “As there is an active criminal case regarding
this incident, all of the above request are denied[.]” This bare justification for
nondisclosure rests on precisely the interpretation of the law enforcement
exemption that this Court rejected in City of Fort Thomas. Id. at 850.
It was only when SPD was brought before the circuit court that it
proffered an explanation for its denial that was somewhat commensurate with
the law enforcement exemption’s “harm” requirement. In his affidavit, SPD
Chief Higdon relevantly attested:
4. That the SPD now submits that the requested records were collected
and compiled by the SPD as necessary evidence required for the
prosecution of this case, and which records have been presented to
the Commonwealth’s Attorney. The requested records which are
being withheld are part of the evidence that will be used for the
Commonwealth Attorney to make a decision whether or not further
prosecutorial action will be taken following a criminal investigation.
5. That the release of these records poses a concrete risk of harm to
the SPD and Commonwealth’s Attorney in the prospective action
and may hinder the agency’s investigation.
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6. That any 911 calls place (sic) to SPD relating to the incident would
contain information from a caller who would likely be interviewed by
SPD in its investigation, and an early release of a 911 call could
compromise a witness and recollection of what transpired during the
incident and would have a negative impact on the veracity of witness
statements relating to this incident and will ultimately taint the
grand jury pool if an indictment is sought by the Commonwealth’s
Attorney.
7. That, likewise, early release of the audio recordings, CAD reports,
dashcam bodycam footage and incident accident reports would
harm the agency by compromising witness recollections and
statements and tainting the grand jury in this prospective law
enforcement action and even more so if a witness or potential grand
juror is exposed to a release of only a portion of the evidence
withheld thus tainting and compromising their impartiality in this
prospective law enforcement action.
We observe that Chief Higdon’s affidavit adequately confirmed that the
requested records were, in fact, compiled during an SPD investigation, and that
the records were to be used in a prospective law enforcement action. The
remainder of Chief Higdon’s affidavit, however, does little to demonstrate what
harm would befall the SPD or Commonwealth’s Attorney should these records
be released. We note that a mere recitation of the legal standard this Court
announced in City of Fort Thomas is not enough to properly invoke the law
enforcement exemption. The agency must articulate some factual basis for
applying the exemption that bears on the record’s content. Id. at 851.
Chief Higdon’s affidavit, however, lacks any facts regarding the content of
the requested records or the prospective law enforcement action that would
purportedly be harmed if those records were subject to public inspection. In
the absence of such facts, we can hardly say that any risk of harm associated
with the release of these records is “concrete.” Rather, in a mere two sentences,
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Chief Higdon’s affidavit offered only speculative concerns regarding the records’
release that would seemingly apply universally to any criminal investigation
turned felony prosecution—that the requested records could potentially
compromise the recollections of some unnamed or unknown witnesses and
that the release of the records might taint a future grand jury proceeding.
While these may, perhaps, be legitimate concerns, it is clear that SPD failed to
provide even a “minimum degree of factual justification,” that would draw a
nexus between the content of the specific records requested in this case and
the purported risks of harm associated with their release. Id. at 852.
We are not unsympathetic, however, to the plight of law enforcement
agencies attempting to lawfully invoke the law enforcement exemption. While
the Open Records Act requires some degree of factual justification to prove the
agency faces a concrete risk of harm, it is easy to see how a more exacting
requirement could quickly subvert the exemption’s purpose of shielding
sensitive information from public inspection. Logically, the more factual
information the agency offers to support its denial of an open records request,
the more information it has revealed about its records and ongoing
enforcement action. Accordingly, we acknowledge that satisfying the law
enforcement exemption’s “harm” requirement might indeed resemble a tight
rope walk for some law enforcement agencies. Further, we posit that the law
enforcement exemption’s “harm” requirement is perhaps an even greater
burden for law enforcement agencies to bear at the outset of a criminal
investigation, when the agency has yet to fully determine what facts, evidence,
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or records are material to its ongoing or impending law enforcement action. In
these instances, and with all invocations of the law enforcement exemption, we
simply implore law enforcement agencies to attempt to provide as many facts
and details as reasonably possible to support their justifications for denial.
Where some factual disclosure, even to a limited extent, “would defeat the
exemption, [an] in camera inspection may be necessary, but those cases should
be the exception.” Id.
Here, it is clear, however, that SPD failed to provide even a minimum
degree of factual justification for its reliance on the law enforcement exemption,
nor did SPD move the circuit court to review the requested records in camera.
We also note that SPD further failed to meaningfully differentiate between the
kinds of records the Courier Journal had requested and similarly failed to
address how the risks associated with their release might vary by record.
Accordingly, we hold that, as a matter of law, SPD failed to prove its denial of
the Courier Journal’s open records request was justified pursuant to the law
enforcement exemption. Therefore, the portion of the circuit court’s order
granting summary judgment in favor of SPD and denying summary judgment
as to the Courier Journal on this basis is vacated.
On remand, the circuit court shall conduct further proceedings regarding
the release of these requested records consistent with this Opinion. This is an
opportunity for SPD to provide the necessary factual justifications for its
continued reliance on the law enforcement exemption. We strain to see how the
SPD’s original justifications for nondisclosure of these records—the
13
compromise of witness statements and the tainting of the grand jury pool—
might still pose a threat to some ongoing or prospective law enforcement
action. 6 Nonetheless, SPD again bears the burden of proving that the release of
the requested records “poses a concrete risk of harm to the agency” in some
prospective action, whatever that may be. Id. at 851 (emphasis added). On
remand, we trust the circuit court to properly exercise its discretion whether or
not to conduct an in camera review of the requested records, as described in
KRS 61.882(3).
B. KRS 17.150(2)
Alternatively, SPD has consistently argued throughout this litigation that
KRS 17.150(2) permits law enforcement agencies to categorically withhold
public records relevant to ongoing criminal investigations and prosecutions
without first demonstrating that the release of those records poses a concrete
risk of harm to the agency. Because such an interpretation of KRS 17.150(2) is
obviously in conflict with this Court’s prior interpretations of the law
enforcement exemption, our task is one of statutory construction and
interpretation.
6 According to the unofficial CourtNet record in Commonwealth v. Brison, No.
20-CR-001392, the alleged driver of the fleeing truck that caused the fatal 2020
collision on Dixie Highway has since been indicted on eighteen various counts of
murder, wanton endangerment, fleeing or evading the police, etc. The same unofficial
CourtNet record indicates that the Jefferson Circuit Court ordered a jury trial in that
matter to be scheduled for May 20, 2025.
14
Our primary goal in interpretating the statutes of this Commonwealth is
to carry out the intent of the General Assembly. City of Fort Wright v. Bd. of Trs.
of Ky. Ret. Sys., 635 S.W.3d 37, 44 (Ky. 2021).
We derive that intent, if at all possible, from the language the
General Assembly chose, either as defined by the General Assembly
or as generally understood in the context of the matter under
consideration. We presume that the General Assembly intended for
the statute to be construed as a whole, for all of its parts to have
meaning, and for it to harmonize with related statutes. We also
presume that the General Assembly did not intend an absurd
statute or an unconstitutional one. Only if the statute is ambiguous
or otherwise frustrates a plain reading, do we resort to extrinsic aids
such as the statute’s legislative history; the canons of construction;
or, especially in the case of model or uniform statutes,
interpretations by other courts.
Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011)
(citations omitted).
First, a reading of the plain language of the statute leads this Court to
conclude that the General Assembly clearly intended KRS 17.150(2) to have at
least some effect on the disclosure of certain public law enforcement records,
for the statute unmistakably states, “Intelligence 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.”
However, as made obvious by the prolonged open records dispute before this
Court today, the extent of KRS 17.150(2)’s scope is not manifestly clear on its
face. We, accordingly, look beyond the statute’s plain text to ascertain the
General Assembly’s intent.
KRS 17.150(2) resides in a section of KRS Chapter 17 devoted specifically
to the collection, storage, and dissemination of “Criminal Records and
15
Statistics.” See KRS 17.110–190. Relevantly, KRS 17.140(1) requires that
Kentucky’s Justice and Public Safety Cabinet create a “centralized criminal
history record information system” to be overseen by the Kentucky State Police
(KSP). The term “centralized criminal history records” refers to information
pertaining to a person’s “identifiable descriptions and notations of arrests,
detentions, indictments, information, or other formal criminal charges and any
disposition arising therefrom, including sentencing, correctional supervision,
and release” that is “collected” and “maintained” by the Justice and Public
Safety Cabinet “in a central location.” KRS 17.150(4). It is important to note
that routine centralized criminal history records are unlike the records at issue
in this case; centralized criminal history records are not bodycam footage or
911 calls. Rather, centralized criminal history records seem to bear some
similarity to records colloquially referred to as “RAP sheets.” In fact, the Justice
and Public Safety Cabinet compiles centralized criminal history record
information with the intent to share that information with “participating federal
bureaus, departments, or criminal justice agencies engaged in the
administration of criminal justice programs.” KRS 17.147(6). Further, the
General Assembly has expressly declared that “[c]entralized criminal history
records are not subject to public inspection.” KRS 17.150(4).
Among the Commonwealth’s statutes delineating the collection, storage,
and dissemination of centralized criminal history records, exists a seemingly
unrelated statute that refers instead to the public inspection of “[i]ntelligence
and investigative reports maintained by criminal justice agencies.” KRS
16
17.150(2). The contrast between KRS 17.150(2) and its surrounding statutes
cannot be overstated. In fact, no statute in KRS Chapter 17, other than KRS
17.150(2), refers to law enforcement “intelligence and investigative reports.”
Despite the glaring reality that KRS 17.150(2) seems to be an oddity in a
statutory scheme related to criminal history data, Kentucky’s law enforcement
agencies have relied on KRS 17.150(2) as a justification to shield their public
records from public scrutiny for nearly fifty years.
As authorized by the Open Records Act, the Office of the Attorney
General plays a vital role in resolving open records disputes in this
Commonwealth. Pursuant to KRS 61.880(2), the Attorney General may “review
a public agency’s denial of a request to inspect a public record.” The Attorney
General’s decision is then appealable to the circuit court. KRS 61.882(3). As a
result of the Attorney General’s initial role in resolving open records disputes,
the bulk of the case law applying and interpreting the Open Records Act, and
its exemptions, is dominated by Opinions of the Attorney General. For example,
our research reveals that Opinions of the Attorney General have referenced
KRS 61.878(1)(h), the law enforcement exemption, hundreds of times, while
this Court has only had occasion to discuss that same statute less than a
dozen times. Perhaps recognizing this phenomenon, this Court has previously
stated that “Opinions of the Attorney General are considered highly persuasive
and have been accorded great weight,” although the Attorney General’s
opinions are ultimately not binding on the courts. Carter v. Smith, 366 S.W.3d
414, 420 n.2 (Ky. 2012).
17
Shortly after KRS Chapter 17 was amended in 1976, the Office of the
Attorney General first interpreted KRS 17.150(2)’s ambiguous text, in
conjunction with the law enforcement exemption, to mean that “the records of
[a] police department on a particular case may be held confidential while the
case is pending.” OAG 79-387. Since this decision, multiple Attorneys General
have similarly and consistently interpreted KRS 17.150(2) to allow law
enforcement agencies to withhold public records on the sole basis that those
records relate to a criminal prosecution that is prospective or pending; no
showing of harm is required under the Attorney General’s interpretation. See,
e.g., OAG 90-143 (“[T]he right of public inspection set forth in KRS 17.150(2) is
contingent upon the completion of the investigation and litigation or a
determination having been made not to prosecute.”).
Even though the Office of the Attorney General’s interpretation of KRS
17.150(2), now relied upon by SPD, does indeed have a long history, we note
that most of that history came before this Court decided City of Fort Thomas v.
Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). While the Office of the Attorney
General often cited KRS 17.150(2) as a categorical exemption for law
enforcement records throughout the latter half of the 20th Century, it was also
similarly misinterpreting the Open Records Act’s law enforcement exemption in
a way that failed to meaningfully address the statute’s “harm” requirement.
See, e.g., OAG 87–29; OAG 87–15; OAG 90–64; OAG 91–124; 92-ORD-1287.
For instance, the Office of the Attorney General wrote in September 1993 that,
18
“This Office has previously recognized that pursuant to KRS 61.878(1)(g), 7
investigative files in the possession of a law enforcement agency are not open to
inspection while the case is active.” 93-ORD-106. In this vein, the Office of the
Attorney General construed the law enforcement exemption and KRS 17.150(2)
as companion statutes that each categorically exempted law enforcement
records from public disclosure during the pendency of an investigation or
prosecution. However, in 2013, this Court, as the foremost and final interpreter
of the statutes of this Commonwealth, made clear that the law enforcement
exemption does not exempt law enforcement records from public disclosure
unless the agency invoking the exemption can demonstrate the record’s
“release poses a concrete risk of harm to the agency in the prospective action.”
City of Fort Thomas, 406 S.W.3d at 851. It is against this backdrop that we are
now asked to consider whether KRS 17.150(2) operates to eviscerate the
“harm” requirement of the law enforcement exemption by allowing criminal
justice agencies to withhold certain public records merely by claiming they will
be used in an ongoing or prospective criminal prosecution.
Despite the many years’ worth of Attorney General opinions interpreting
KRS 17.150(2) to allow the categorical nondisclosure of certain law
enforcement records before a related prosecution has concluded, this Court
interprets the statute to have no bearing on whether public records can be
disclosed before a criminal prosecution is completed or a determination not to
7 From 1992 to 1994, the law enforcement exemption was codified at KRS
61.878(1)(g).
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prosecute has been made. Instead, we interpret KRS 17.150(2) to govern only
the mandatory disclosure of “intelligence and investigative reports” after the
related criminal prosecution has been completed or a determination not to
prosecute has been made. In this respect, KRS 17.150(2) delineates how
“criminal justice agencies” should respond to open records requests for
“intelligence and investigative reports” after a criminal prosecution concludes:
the statute plainly provides that the requested records “are subject to public
disclosure.” The statute then provides four exceptions to that general rule.
Even where a related criminal prosecution has already concluded, intelligence
and investigative reports may, nonetheless, be lawfully withheld when public
inspection of those records may disclose:
(a) The name or identity of any confidential informant or
information which may lead to the identity of any confidential
informant;
(b) Information of a personal nature, the disclosure of which will
not tend to advance a wholesome public interest or a legitimate
private interest;
(c) Information which may endanger the life or physical safety of
law enforcement personnel; or
(d) Information contained in the records to be used in a prospective
law enforcement action.
KRS 17.150(2)(a)–(d). The statute mandates that the agency citing one of these
exceptions shall bear the burden of justifying its refusal with specificity. KRS
17.150(3).
To hold otherwise, and to interpret KRS 17.150(2) in a manner consistent
with the Office of the Attorney General and SPD, would be to effectively erase
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the “harm” requirement from KRS 61.878(1)(h) and therefore render a
meaningful portion of the Open Records Act meaningless. Such an
interpretation is unpalatable when we consider our duty to harmonize
conflicting statutes so as to give effect to each of the General Assembly’s
enactments. Ledford v. Faulkner, 661 S.W.2d 475, 476 (Ky. 1983). Going
forward, KRS 61.878(1)(h) and KRS 17.150(2) should be interpreted to act in
concert to address two distinct stages of records disclosure. The law
enforcement exemption shall apply to govern the release of law enforcement
records before a prosecution has been completed, and KRS 17.150(2) shall
apply to direct the release of certain “intelligence and investigative reports”
post-prosecution. The harmony between these two statutes is even more
apparent when one considers that the law enforcement exemption also
instructs that, “Unless exempted by other provisions of [the Open Records Act],
public records exempted under this provision shall be open after enforcement
action is completed or a decision is made to take no action.” KRS 61.878(1)(h)
(emphasis added). As incorporated by KRS 61.878(1)(l), the exceptions to
release listed in KRS 17.150(2)(a)–(d) explain when records may be withheld
post-enforcement action.
In reaching our interpretation of KRS 17.150(2), we also assume that the
same General Assembly which declared that the “free and open examination of
public records is in the public interest” would not drastically alter the force of
the Open Records Act in a statute as peripheral or tangential as KRS 17.150(2).
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The General Assembly does not hide elephants in mouseholes. Landrum v.
Commonwealth ex rel. Beshear, 599 S.W.3d 781, 791 (Ky. 2019).
While our interpretation of KRS 17.150(2) may be in contrast to some
open records decisions rendered by the Office of the Attorney General, this
Court believes that the intent of the General Assembly has always been to
promote the open inspection of public records. We, accordingly, strictly
construe KRS 61.878(1)(l) and KRS 17.150(2).
As SPD has consistently suggested that the existence of an ongoing
criminal prosecution prevents it from releasing the records in this case, we
hold that it is premature for SPD to rely on KRS 17.150(2) to withhold those
records.
C. The Personal Privacy Exemption
SPD finally argues that it is entitled to withhold the bodycam and
dashcam footage requested by the Courier Journal, in full, because those
public records are exempt from disclosure pursuant to the Open Records Act’s
“personal privacy exemption,” codified at KRS 61.878(1)(a). SPD specifically
argues that portions of the requested video footage depict the fatal July 2020
car crash on Dixie Highway, and that releasing this footage would violate the
personal privacy interests of the deceased victims and their families. The
Courier Journal conversely argues that it has no interest in the portions of
dashcam and bodycam footage that might depict deceased individuals, and
instead only seeks video footage depicting the high-speed chase on Dixie
Highway and the events immediately preceding that chase.
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KRS 61.878(1)(a) permits public agencies to lawfully withhold “[p]ublic
records containing information of a personal nature where the public
disclosure thereof would constitute a clearly unwarranted invasion of personal
privacy[.]” To determine whether a public record was properly withheld
pursuant to the personal privacy exemption, a reviewing court conducts a
“comparative weighing” of the competing interests at stake in the record’s
release—those interests being an individual’s interest in personal privacy and
the public’s interest in disclosure. City of Hopkinsville, 415 S.W.3d at 82.
This court is cognizant of the deceased victims of the Dixie Highway
crash and their families’ potential privacy interest in the depiction of their
images that would warrant nondisclosure pursuant to KRS 61.878(1)(a).
However, the Courier Journal has made it abundantly clear that is does not
seek these images. In effect, it is as if the Courier Journal has conceded that
these limited portions of the requested records are indeed exempt from
disclosure. However, the Open Records Act requires that “[i]f any public record
contains material which is not excepted under this section, the public agency
shall separate the excepted and make the nonexcepted material available for
examination.” KRS 61.878(4). Therefore, even if some portions of the requested
video records contain content that is exempt from disclosure, SPD still has a
duty to release the portions of the videos that are not exempted.
SPD makes no meaningful attempt to explain how the remaining
portions of the requested dashcam and bodycam footage are exempt from
disclosure pursuant to the personal privacy exemption. Further, Chief Higdon’s
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affidavit provides no real justification for the agency’s denial of the Courier
Journal’s open records request pursuant to KRS 61.878(1)(a). Instead, Chief
Higdon’s affidavit merely makes a conclusory assertion that releasing the
entirety of the requested footage would “constitute a clearly unwarranted
invasion of privacy.” Accordingly, this Court is left with little to no facts to aid
in determining whether these remaining portions of the requested footage
“contain[] information of a personal nature,” let alone whether the public
disclosure of that information “would constitute a clearly unwarranted invasion
of personal privacy.” KRS 61.878(1)(a). As such, SPD has failed to meet its
burden of proof under the personal privacy exemption. We hold that the
personal privacy exemption, KRS 61.878(1)(a), is an improper basis to
categorically withhold the entirety of the requested dashcam and bodycam
video in this instance.
D. Costs and Attorney’s Fees
Pursuant to the Open Records Act, the prevailing party in an open
records dispute may be entitled to an award of costs and reasonable attorney’s
fees, if the circuit court finds that the agency willfully withheld public records
in violation of the Open Records Act. KRS 61.882(5). If the records requester
prevails only in part, the circuit court “may in its discretion award him costs or
an appropriate portion thereof.” Id. “In addition, it shall be within the
discretion of the court to award the person an amount not to exceed twenty-five
dollars ($25) for each day that he was denied the right to inspect or copy said
public record.” Id.
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In determining what constitutes a “willful violation” of the Open Records
Act, this Court has before stated that, “A public agency’s mere refusal to
furnish records based on a good faith claim of a statutory exemption, which is
later determined to be incorrect, is insufficient to establish a willful violation of
the Act.” Bowling v. Lexington-Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 343
(Ky. 2005). “In other words, a technical violation of the Act is not enough; the
existence of bad faith is required.” Id.On appeal, SPD asks this Court to acquit it of any alleged willful violation
of the Open Records Act. SPD specifically contends that its actions cannot
amount to a willful violation of the Open Records Act, because it denied the
Courier Journal’s open records request relying in good faith on the Office of the
Attorney General’s interpretations of KRS 17.150(2). However, like the Court of
Appeals, we too conclude that any consideration of whether SPD willfully
violated the Open Records Act is premature at this juncture. Because we
remand to the circuit court for further proceedings regarding the release of the
requested records pursuant to the law enforcement exemption, there is not yet
a prevailing party in this action, and we decline to speak to whether SPD
willfully violated the Open Records Act. If the circuit court orders SPD to
release the requested records on remand, we expect the circuit court to make
an appropriate determination regarding costs and fees.
We do note, however, for clarity, that SPD did not seem to rely on KRS
17.150(2)’s text when it initially denied the Courier Journal’s request for public
records. Rather, SPD cited only the law enforcement exemption in its initial
25
mechanical denial of the Courier Journal’s request. Further, SPD invoked an
interpretation of the law enforcement exemption that this Court has expressly
rejected in City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky.
2013).
IV. CONCLUSION
For the foregoing reasons, this Court affirms the Opinion of the Court of
Appeals vacating the portion of the circuit court’s order granting summary
judgment in favor of SPD and denying summary judgment as to the Courier
Journal. We remand for further proceedings regarding the release of the
requested records consistent with this Opinion.
VanMeter, C.J.; Conley, Lambert and Nickell, JJ., and Key and Harned,
S.J., sitting. VanMeter, C.J., Conley, Lambert, Nickell, JJ., and Harned, S.J.,
concur. Key, S.J., concurs in part and dissents in part by separate opinion.
Bisig and Thompson, JJ., not sitting.
KEY, S.J., CONCURRING IN PART AND DISSENTING IN PART: I concur
with the result and most of the reasoning outlined in the majority opinion. I
dissent, in part, to address the interpretation of KRS 17.150(2) that will now be
the law of this Commonwealth, namely that this statute cannot be invoked
until the post-prosecution stage of a case.
The circuit court expressed no opinion on this interpretation. While the
Court of Appeals did, it did not express complete confidence about this
interpretation. Specifically, the Court of Appeals stated (in this case where
prosecution is not yet complete) "[s]o even if KRS 17.150(2) somehow applied, it
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would not justify the complete withholding of all of the records by itself.”
(emphasis added).
KRS 17.150(2), by its plain text, only applies to intelligence and
investigative reports. The open records request in this case included 911 calls
and bodycam footage. No party to this litigation has cited to any authority that
a 911 call or bodycam footage can be classified as an intelligence or
investigative report.
As such, the Court of Appeals correctly concluded that KRS 17.150(2)
could not be used to withhold all of the records. Combined with the remanding
of the case to the circuit court, that would seem to be enough. This is
particularly true when the circuit court already ruled below (concerning a
separate request) that KRS 17.150(2) could not be used to withhold officer
commendations, complaints and sanctions, and vehicle pursuit policies, as
those items are not intelligence or investigative reports.
This should alleviate any concern that the Attorney General’s long-
standing interpretation (that the statute can be invoked before or during
prosecution) would cause criminal justice agencies to simply respond to open
records requests with the blanket allegation that the requested records are
“intelligence or investigative reports.” Circuit courts will have the power to see
through (and penalize) such arguments.
Regardless, the majority goes further in attempting to address its main
worry that KRS 17.150(2) should not eviscerate the "harm" requirement of the
law enforcement exception. But to the point raised above, criminal justice
27
agencies will likely now just allege blanket “harm” when intelligence or
investigative reports are requested, which could result in even more protracted
litigation for the requestor (given that it may be harder to prove the lack of
“harm” than that an item requested is not an “intelligence or investigative
report.”).
The plain text of KRS 17.150(2) seems to have been distorted by the
appellate litigation in this matter, as initially noted by the Attorney General in
its amicus brief. As further mentioned by the Attorney General, this new
interpretation has the potential to harm future prosecutions in our
Commonwealth if intelligence and investigative reports are subject to public
inspection earlier than intended.
The majority’s interpretation will change decades of Attorney General
guidance, and some of those opinions came after this Court decided City of Fort
Thomas. See 17-ORD-144, which specifically cites City of Fort Thomas, and
notes that "[i]nvestigative reports are nearly always withheld from public
inspection to protect sources of information and techniques of investigation
and also to prevent premature disclosure of the contents to the targets of
investigation, which could thwart law enforcement efforts.” OAG 83-123.
Most important is the plain text of the law: "Intelligence 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). As briefed by the Attorney General, by providing a
condition for when such reports are subject to public inspection (the language
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following the "if"), the statute is drained of meaning if these reports are subject
to inspection if the condition is not met.
The Attorney General's interpretation would not render a portion of the
Open Records Act meaningless. As discussed above, KRS 17.150(2) could not
be successfully invoked for most, if not all, of the records requested in this
case, as they are not intelligence or investigative reports. The Attorney General
points out that KRS 17.150(2) is a much more specific and targeted statute
than the pertinent provision of KRS 61, which addresses “[r]ecords” held by
“law enforcement agencies.” Despite these laws being passed very close in time
by the General Assembly, the majority gives no weight to the argument that
greater protection was intended for pre-prosecution intelligence and
investigative reports (which could distort witness memories or bias jurors).
The Attorney General additionally argues that the exception contained in
KRS 17.150(2)(d) is meaningless under the interpretation now adopted by this
Court. But perhaps the current result of this litigation is unsurprising given
the Court's legitimate concern of not allowing a statute found outside of KRS
61 to improperly circumvent the importance of the Open Records Act (and this
Court's related precedent), when in the past the Attorney General and/or law
enforcement potentially attempted to apply KRS 17.150 broader than how it
reads.
But none of that changes its plain language, and on the issue of whether
KRS 17.150(2) can apply to intelligence and investigative reports pre-
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prosecution, I believe the Attorney General's interpretation that it can is
correct.
COUNSEL FOR APPELLANT, SHIVELY POLICE DEPARTMENT:
Finn Robert Cato
Cato Law Office PLLC
COUNSEL FOR APPELLEE, THE COURIER JOURNAL, INC.:
Jon L. Fleischaker
Michael Patrick Abate
William R. (“Rick”) Adams
Kaplan Johnson Abate & Bird LLP
COUNSEL FOR AMICUS, COMMONWEALTH OF KENTUCKY:
Matthew F. Kuhn
Assistant Attorney General
COUNSEL FOR AMICUS, KENTUCKY OPEN GOVERNMENT COALITION, INC.:
John Woods Potter
Amye Bensenhaver
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