LAST MINUTE EFFORT TO DENY PUBLIC ACCESS TO LAW ENFORCEMENT RECORDS AND TO GUT SHIVELY SUPREME COURT OPINION

Today we learned that there are no lengths to which the General Assembly will not go to undermine, subvert, and abridge the public's right to know.

ELEVENTH HOUR SUBSTITUTE

By no accident, an eleventh hour revision of HB 520, "An ACT relating to law enforcement records" was voted out of the Senate State and Local Government Committee with a "PSS" (Proposed Senate Substitute) by the barest of margins.

https://apps.legislature.ky.gov/record/25rs/hb520.html

The Senate Substitute provides:

“Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations IF THE AGENCY STATES THAT THE DISCLOSURE OF THE INFORMATION COULD POSE A RISK OF [would] 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. Unless exempted in whole or in part by other provisions of KRS 61.870 to 61.884 OR SECTION 2 OF THIS ACT, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys,[ or] Commonwealth's attorneys, OR THE DEPARTMENT OF LAW pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884[.]”

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=54126 See Subsection (1)(h) ( New language in Proposed Senate Substitute in ALL CAPS)

“Section 2,” referenced in the Proposed Senate Substitute, is KRS 17.125(2) — a separate statute relating to criminal records reporting. In Shively Police Department v Courier Journal, Inc., (2024), the Kentucky Supreme Court characterized this statute as a mandatory public records disclosure provision -- triggered by conclusion of a prosecution — not a nondisclosure provision or exception. By looping that statute back into the open records law, the General Assembly reveals it true purpose: to legislatively reverse the Supreme Court’s ruling in Shively Police Department v Courier Journal and to extend a nearly “free pass” to law enforcement to deny public records requests in open cases.

https://law.justia.com/cases/kentucky/supreme-court/2024/2023-sc-0033-d…

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=46877

REDUCING THE STANDARD FOR PROVING HARM

To rely on KRS 61.878(1)(h) to deny access to a record — under current statute —
a law enforcement agency must prove that “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.”

As introduced, HB 590 diluted that requirement by substituting the word “could” for “would,” making the possibility of harm sufficient to sustain agency denial of a request for law enforcement records.
It made no other appreciable changes.

The requirement in the version of HB 520 that emerged from the Senate State and Local Government Committee on March 13 dilutes that requirement nearly altogether — essentially creating a presumption of harm based on the open status of a case. The law enforcement agency need only “state that the disclosure of the information could
pose a risk of harm“ to the agency or investigation to sustain its denial of a records request.

So much for the open records law's basic presumption of openness.

This ridiculously loose standard is likely to create a blanket exemption for police investigative files, regardless of their contents, while an investigation is open.

MORE OBSTACLES TO PUBLIC ACCESS

It is important to note, although barely mentioned in past discussion of KRS 61.878(1)(h), that this same absurdly relaxed requirement would apply to "administrative adjudications,"
such as internal affairs investigations of police misconduct that do not rise to the level of criminal conduct; license revocation, actions against licensed businesses and occupations, and a seemingly endless body of government dispute resolution and enforcement cases.

It is equally important to note that the Proposed Senate Substitute version of HB 520 heading to the Senate floor for a full vote would extend the existing permanent exception for Commonwealth's and County Attorney criminal investigation records to the "Department of Law," i.e., the Office of the Attorney General.

Current law does not include the Attorney General in this "permanent exception within the exception" by accident. There is a reason. The explanation for this distinction in the 1992 change to the open records law is that the investigative records held by Commonwealth's and County Attorneys' are also held by a separate law enforcement agency -- the Kentucky State Police, the local police department, the sheriff's office -- which investigates the crimes for the prosecutors. Their investigative file are similar if not identical. But the prosecutor's records cannot be accessed at any time during or even after investigation/prosecution while the nonexempt records in the law enforcement agencies' records are accessible at all times, as an alternative.

Since the Attorney General conducts his own investigations in many cases, there is no corresponding law enforcement agency that maintains an identical criminal investigation file that can be accessed.

The public is forever foreclosed from accessing public records of the Attorney General's investigations. The most notorious, though not the most recent, of these investigations?The Kent Downey Scandal.

https://www.tumblr.com/kwjsubblog/122221095551/kent-downeys-kentucky-ho…

Erupting in the mid-90s, Downey involved prostitution, gambling, sexual harassment, and misuse of state resources, all operating from within the Kentucky legislature and investigated by former Attorney General Ben Chandler and the FBI -- a federal agency not subject to the open records law. The only source through which records could be obtained by means of an open records request was the Department of Law (Office of the Attorney General).

The OAG's investigative records were ultimately disclosed.

The proposed change to KRS 61.878(1)(h) does enormous harm to the public right to know inasmuch as it is the Attorney General who investigates and prosecutes voter fraud, campaign finance violations, and much more. Is it wise to declare his files, some of an historical dimension (consider the Beverly Hills Supper Club Fire litigation or the Purdue Pharma litigation) forever exempt?

Whose bright idea was this? Suffice it to say that the current Attorney General's fingerprints are all over this bill.

CHANCES OF PASSAGE

HB 520 with PSS 1 has a number of legislative hurdles to clear, and it may stumble.

We were encouraged to learn from Lexington Herald-Leader reporter John Cheves, and others on the scene, that there was considerable resistance to the Proposed Senate Substitute in the March 13 Senate State and Local Government Committee meeting and to learn that "the committee briefly killed the bill, with senators citing concerns over a lack of transparency." Unfortunately, "state Sen. Greg Elkins, R-Winchester, flipped from a 'no' to a 'yes' vote just as the meeting ended, allowing it to narrowly slip past the committee with a 6-to-4 vote for approval."

https://www.kentucky.com/news/politics-government/article301995324.html

CALL YOUR LEGISLATOR AT 1-800-372-7181. TELL HIM TO VOTE "NO" ON EITHER VERSION THAT EMERGES FROM THE GA.

https://legislature.ky.gov/Pages/contactus.aspx#:~:text=Contact%20Your%….

HB 520 is a legislative response to a watershed case in the body of open records caselaw: Shively Police Department v Courier Journal. Shively synthesized over a decade of Supreme Court precedent on access to law enforcement records. 509 will legislatively reverse -- in favor of secrecy -- over a decade of thoughtful analysis balancing the need for confidentiality in ongoing criminal investigation against the public's need know that law enforcement agencies are "properly executing their statutory functions, what the current threat to community safety is, and, in the most compelling cases, that grieving families have access to public records to search for and find answers in the face of official silence over long years."