The Kentucky Open Government Coalition has issued the following STATEMENT ON HB 520:

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

With all due respect to the sponsor, 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.

“Concrete“ harm becomes "articulable“ harm —“capable of being expressed, explained, or justified” such that it might apply in any investigation and enforcement action/ prosecution, for example, “taint the jury pool” or "influence witness testimony."

In a word, HB 520
creates a laxer, looser, and less onerous standard for denying the public access to records in an open case.

Even if HB 520 can be interpreted more narrowly, it is unlikely law enforcement will apply it narrowly. All investigations -- law enforcement agencies speculate -- may be harmed by records disclosure.

A fifty year old habit is hard to break.

Without the necessity of drawing a nexus between the content of the specific records at issue and the harm associated with their release, HB 520 has the very real potential for defeating all of the victories relating to law enforcement records since City Fort Thomas v Cincinnati Enquirer.

It is rarely curiosity -- almost never a desire to compromise an investigation or disrupt law enforcement's essential functions -- that drives the public to submit open records requests for law enforcement records to law enforcement agencies.

It is far more often the public interest in 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 -- that prompts the requester to file an open records request and enforce their legal right to know.

By the same token, it is generally not a fetish for secrecy, engrained authoritarianism, or the need to cover-up official misconduct or incompetence that prompts law enforcement to erect a wall of silence.

It is, rather the de-prioritization of the open record function and the marginalization of the public's interest — where that interest is, arguably, the greatest — in monitoring whether and how law enforcement is discharging its statutory function.

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.