The Kentucky Open Government Coalition today sent a Request for Veto of House Bill 520 to Governor Andy Beshear. The full text of our request appears below.
It is our hope we can convince the Governor that the foreseeable harm that will result from HB 520 does great injury to the public’s right to know as that right relates to law enforcement activities and actions.
Will the Governor thoughtfully consider our objections over the misrepresentations and half truths lawmakers argued in support of the bill?
We will keep you posted.
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March 19, 2025
Kentucky Open Government Coalition
612 S. Main St./Suite 203
Hopkinsville, KY 42240
Honorable Andy Beshear
Governor, Commonwealth of Kentucky
The Capitol
Frankfort, Kentucky 40601
Re: Request for Veto of House Bill 520
Dear Governor Beshear:
The Kentucky Open Government Coalition respectfully urges you to veto HB 520, "An ACT relating to law enforcement records."
The Coalition is a nonpartisan Kentucky nonprofit corporation founded in 2019. We are one of multiple citizen-driven state, territory, and district members of the National Freedom of Information Coalition.
Our purpose is to enhance public understanding of the Kentucky open records and meetings laws and preserve existing public rights under those laws. We serve as a citizens’ voice for open government.
It is our position that House Bill 520 threatens the ability of the public to access nonexempt public records of law enforcement agencies as an investigation proceeds. There is a critical public interest in ensuring law enforcement agencies are properly discharging their public duties in the course of an investigation to the extent it does not compromise that investigation.
House Bill 520, "an act relating to law enforcement records," is not - as its sponsor testified in the House State Government committee meeting on February 27 - a bill intended to "ensure clarity" of the nearly fifty years old law enforcement exception to the open records law.
https://apps.legislature.ky.gov/record/25rs/HB520.html
https://www.youtube.com/watch?v=f-5Rn_Bt7oU&t=2811s
There is no need for clarification.
Clarity was achieved in 2013 when the Kentucky Supreme Court decided City of Fort Thomas v Cincinnati Enquirer. The Court rejected law enforcement's argument that it "need show no more than an entire file's general relation to a possible enforcement action" to successfully deny the public access to every single record in that file while an investigation - that might lead to enforcement action - proceeds. In other words, the Court rejected law enforcement's argument that an open records requester gets no records from a law enforcement agency while a case is "open."
https://caselaw.findlaw.com/court/ky-supreme-court/1643297.html
The Court reasoned that law enforcement's "asserted presumption of harm" from disclosure of any record in an ongoing investigation - without concrete proof - would:
•turn on its head the Open Records Act's basic presumption of openness;
•create a blanket exemption for police files regardless of their contents;
•relieve law enforcement agencies of their statutory obligation to separate excepted materials (records ) from unexcepted materials, "mak[ing] the unexcepted material available for examination"; and
•reduce the statute's harm requirement to "mere surplusage."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23058
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=54126
Instead, the Court in City of Fort Thomas ruled:
"[T]he law enforcement exemption 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. A concrete risk, by definition, must be something more than a hypothetical or speculative concern."
HB 520, as amended, returns Kentuckians to the legal world as we knew it before the City of Fort Thomas v Cincinnati Enquirer. A few critical changes in wording - from "would" to "could," - a hypothetical or speculative risk of harm, for example rather than an actual risk of concrete harm based on the individual record's content, is sufficient to deny the public access to records in an open investigation and enforcement action.
HB 520 creates a laxer, looser, and less exacting standard for law enforcement denial of a public records request than any other subset of public agencies enjoys.
The public interest in nonexempt law enforcement records in the course of an investigation is premised on ensuring that law enforcement agencies are properly executing their statutory functions, in gauging the threat to community safety -- and, in the most compelling cases, in enabling a grieving family to search for and find answers in the face of official silence over long years.
City of Fort Thomas brought the public closer to a level playing field by requiring law enforcement to articulate "a factual basis" for withholding a record in an open investigation, based on the record's content, because its release would harm a prospective law enforcement action.
Shively Police Department v Courier Journal, Inc. restored the balance of power between the protectors and those they are sworn to protect by reaffirming this legal requirement and flatly rejecting the long held view that a separate statute, KRS 17.150(2), authorized blanket nondisclosure of entire files, while ignoring the required showing of actual harm, simply because the files relate to an open investigation and possible prosecution.
https://law.justia.com/cases/kentucky/supreme-court/2024/2023-sc-0033-d…
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=46877
The Shively Police Deparment case may have prompted HB 520 -- a legislative "fix" to ensure law enforcement maintained the upper hand -- that they alone among public agencies were relieved of the statutory duty to separate excepted materials (records) from unexcepted materials and "make the unexcepted material available for examination."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=54126 (see subsection 4)
Six months after the Kentucky Supreme Court clarified the law enforcement exception by holding law enforcement agencies to the same burden of sustaining their denials of open records requests, legislators seek to restore the interpretation of the law that carves out an "open case" exception for law enforcement that the Court repudiated and that, if enacted, will return law enforcement agencies to the world of shadows and secrets.
We encourage you to preserve the proper balance between the compelling public interest in nonexempt records the disclosure of which will not compromise an investigation or enforcement action and the governmental interest in nondisclosure.
Public trust - and the health of a community over time, flourishes in an atmosphere of openness and candor. It dies in an atmosphere of secrecy and deception.
For these reasons, the Kentucky Open Government Coalition respectfully requests that you veto HB 520. Nothing less than public’s trust in the instrumentalities it has created rests in the balance.
We welcome the opportunity to discuss our concerns with you.
Respectfully submitted,
The Kentucky Open Government Coalition Board Members
Amye Bensenhaver, Frankfort
Jennifer P. Brown, Hopkinsville
Scott Horn, Lexington
Tom Kiffmeyer, Morehead
Jeremy Rogers, Louisville
