UPDATE: A discussion followed yesterday’s post concerning HB 520, copied below. We remain unconvinced by the sponsors’ “selling points” for the proposed amendment to KRS 61.878(1)(h), but will hear them ad nauseam as the debate on the bill proceeds and notwithstanding the fact they have been disproven .

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• Rep. Nemes: “This is the way the law has been interpreted for decades. Last year the Supreme Court changed that longstanding interpretation of the law, so we are returning it to the way it has always been. In short, this would protect records DURING AN INVESTIGATION if the disclosure of those records DURING THE INVESTIGATION would harm the investigation or disclose an informant DURING THE INVESTIGATION. Such documents would be disclosed after the adjudication or decision not to go forward with the case.”

• On behalf of the Coalition, I replied: “[Rep. Nemes] is partially correct. Law enforcement interpreted the law this way and successive AG’s backed their interpretation.

But the courts have NOT interpreted the law this way for decades. In City of Fort Thomas v Cincinnati Enquirer (2013), the Supreme Court overruled an earlier opinion, Skaggs v Redford, to the extent it could be read to support this purportedly decades’ old interpretation. There were no cases prior to Skaggs that addressed KRS 61.878(1)(h).

City of Fort Thomas is controlling legal authority. It is affirmed in, for example, UK v The Kernel, and, of course, Shively Police Department v Courier.

As an AAG, I followed my predecessors’ erroneous interpretation until I realized that KRS 61.878(1)h) could not be reconciled with KRS 17.150(2). I spent the next several years trying to persuade the 3 to 4 remaining AG’s I worked for — digging my own grave with each effort to persuade them. I believe, and much more importantly, the Kentucky Supreme Court believes, that law enforcement and multiple AG’s were wrong for decades.

To suggest that the Supreme Court whimsically “changed” the law last year is absurd. The text of KRS 61.878(1)(h), and the legislative history of (1)(h) and 17.150(2) — both enacted in 1976 — does not support this offensive statement.

I worked exclusively on open records and open meetings for 25 years (until I was pressured to leave by AG Andy Beshear and his staff in 2016, in part, over this issue). I do not presume to be an “expert” in much, but I will pit my knowledge against Rep. Nemes on this and any other open records or open meetings issue.”

• Asked whether the law enforcement exception
should be amended, and, if so, how, I responded:

“Of course, I would like to see the law enforcement exception unchanged. I agree it poses a challenge to law enforcement, but it’s similar to the challenge all agencies face—locating responsive records, reviewing responsive records, separating excepted from non excepted records, disclosing those that are not excepted, withholding those that are excepted and, in the case of law enforcement and an open investigation, 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.’

Law enforcement is accustomed to categorically denying open records requests if an investigation is open. No effort expended. The Supreme Court holding in Shively simply puts them on the same open records playing field as all other public agencies.

Not EVERYTHING in an open investigation requires secrecy!”

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Rep. Nemes continues to insist that the bill merely restores the existing legal status quo, and that it was the Supreme Court that “changed” the law in Shively Police Department v Courier Journal. That case, by the way, is a classic example of public agency abuse of KRS 17.150(2) and KRS 61.878(1)(h). Examine the facts. It’s evident that unsubstantiated delay premised on the open status of the case deflected from the horrific underlying circumstances implicating the department’s hot pursuit policies and the deaths of multiple innocent bystanders. http://opinions.kycourts.net/sc/2023-SC-0033-DG.pdf

The Supreme Court repudiated decades of misapplication of KRS 17.150(2) by law enforcement agencies and the Attorney General.

The Court affirmed over two decades of judicial interpretation of KRS 61.878(1)(h) commencing with City of Fort Thomas v Cincinnati Enquirer.

https://caselaw.findlaw.com/court/ky-supreme-court/1643297.html

That case has been affirmed in multiple cases, including University of Kentucky v The Kernel by Press and culminating in Shively Police Department v Courier Journal.

With due respect, Rep. Nemes is wrong when he says the law enforcement exception has been interpreted as proposed in HB 520 for decades and that his colleagues and he are simply restoring the status quo.

Only law enforcement and compliant attorneys general treated this interpretation as “the law.” And not just the last two attorneys general — all wanted to give the appearance of supporting law enforcement and were wary of locking horns with law enforcement.

Again, the governing legal precedent is found in City of Fort Thomas v Cincinnati v Enquirer (2013) and a series of cases that followed culminating in Shively Police Department v Courier Journal (2024).

HB 520 does not restore the legal status quo prior to the Shively case. Instead, it codifies the privilege law enforcement agencies have usurped under their self-serving interpretation of the law enforcement exception to the open records law (as well as the interpretation erroneously advanced by feckless attorneys general) that effectively relieves them of their statutory duties under the open records law until they deem a case closed.

And, yes, that can occur, and has occurred, decades after the investigation is launched. See, for example, https://kyopengov.org/law/ag/2006/06-ord-265
(2006 request for records relating to the 1965 murder by carbolic acid of a Lexington socialite denied by Lexington Police Department because the investigation was still open). See also, https://cases.justia.com/kentucky/court-of-appeals/2019-2018-ca-000186-… (2019 published appellate court opinion rejecting Kentucky State Police unconvincing denial of request for records relating to 1995 abduction of requester’s daughter).

If it is the aim of the legislature to provide indefinite “cover” for law enforcement agencies that no other agencies enjoy, so be it, but let them be honest about their true purpose — to curry favor with a powerful lobby on a false premise.