On two separate occasions in recent years, the Kentucky Supreme Court has applied the Kentucky Open Records Act according to its terms. In doing so, it refused to allow two local police agencies to impose a blanket "investigation" exception to the requirement that police produce records related to an arrest. But at the end of March, the Kentucky Legislature passed a law that effectively overrules those decisions. The result will be less transparency around police activities in the Commonwealth.
Until March 27 of this year, Kentucky police departments could withhold investigatory records only if "the disclosure of the information would harm the agency by . . . premature release of information to be used in a prospective law enforcement action[.]" In two separate Kentucky Supreme Court cases, the City of Fort Thomas and the City of Shively Police Departments attempted to invoke the exception, submitting affidavits attesting that release of the records would harm the agency. But in both cases, the police couldn't provide any facts to back up their assertions that they'd be harmed by the disclosure. Accordingly, the court ruled against the police departments each time.
To the extent these rulings put police departments in a quandary, the simple solution would be for those departments to provide actual evidence of harm or simply not assert the exception so cavalierly. It doesn't appear that any harm came to Fort Thomas or Shively from releasing the records.
But that's not what happened. Instead of insisting that local police departments get their own houses in order, Rep. Chris Fugate sponsored House Bill 520. Fugate spent 22 years with the Kentucky State Police, and according to the Louisville Courier Journal, was not even familiar with the Court's decision in Shively.
Fugate's bill, which was adopted without the Governor's signature, changed to wording of the Kentucky Open Records Act so that it now reads: "Records of law enforcement agencies or agencies . . . [are exempt] if the disclosure of the information could pose an articulable risk of harm to the agency or its investigation by revealing the identity of informants or witnesses not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication."
So now, rather than proving actual harm from the release of records, the police merely need to articulate a risk that could harm the department. That is a momentous change. It would be hard for me to prove that I am going to be in a car accident on my way home from work. I've worked in downtown Cincinnati for 43 years and I have never been in a car accident on my commute. But could I "articulate" a risk that I could be in a car accident? Sure. Anything is possible. And that's the difference between "would" and "could." "Would" requires actual evidence. "Could" requires a vivid imagination.
House Bill 520 makes it easy, too easy, for Kentucky Police Departments to evade the spirit if not the letter of the Kentucky Open Records law. March 27 was not a good day for transparency in the Commonwealth.
