23-ORD-314
November 27, 2023
In re: Nick Horne/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it denied inspection of public records that
are exempt under KRS 61.878(1)(h) and KRS 17.150(2).
Open Records Decision
On behalf of his client, Nick Horne (“the Appellant”) submitted a request to
KSP for copies of various records related to an officer-involved shooting that led to
the death of his client’s brother. KSP denied the request under KRS 61.878(1)(h) and
KRS 17.150(2). The Appellant “acknowledg[ed] the validity” of KSP’s denial under
those exceptions but submitted a second request for only the photographs and videos
depicting the death of the decedent. The Appellant claimed to have a right to inspect
these records under KRS 61.878(1)(q) notwithstanding KSP’s previously claimed
exceptions. After KSP again denied the request under KRS 61.878(1)(h) and
KRS 17.150(2), this appeal followed.
On appeal, the Appellant does not claim that the law enforcement exceptions,
KRS 61.878(1)(h) and KRS 17.150(2), do not apply to the requested records.1 Rather,
1
KRS 61.878(1)(h) exempts from inspection, “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 disclosure of the information would harm the
agency by revealing the identity of informants not otherwise known or by premature release of
information to be used in a prospective law enforcement action or administrative adjudication.”
KRS 17.150(2), on the other hand, exempts from inspection, “Intelligence and investigative reports
maintained by criminal justice agencies are subject to public inspection if prosecution is completed or
a determination not to prosecute has been made.” KRS 17.150(2) is one of the many confidentiality
statutes outside of KRS 61.870 to KRS 61.884 that is nevertheless incorporated into the Act by
KRS 61.878(1)(l), which exempts from inspection “[p]ublic records or information the disclosure ofhe claims his client is entitled to these records under KRS 61.878(1)(q) despite the
“validity” of KSP’s claim that the law enforcement exceptions apply. He is incorrect.
The Act declares that “[a]ll public records shall be open for inspection by any
resident of the Commonwealth, except as otherwise provided by KRS 61.870 to
61.884.” KRS 61.872(1). This statutory right of inspection, however, does not apply to
public records that “are excluded from the application of KRS 61.870 to 61.884.”
KRS 61.878(1). That provision currently enumerates 19 categories of records that are
exempt from inspection, two of which incorporate by reference every federal or state
law that also makes records confidential. See KRS 61.878(1)(k) and (l). Any records
exempt under KRS 61.878(1) “shall be subject to inspection only upon order of a court
of competent jurisdiction, except that no court shall authorize the inspection by any
party of any materials pertaining to civil litigation beyond that which is provided by
the Rules of Civil Procedure governing pretrial discovery.” Id.
Among the 19 categories of records that are exempt from inspection are
“photographs or videos that depict the death, killing, rape, or sexual assault of a
person.” KRS 61.878(1)(q). “However, such photographs or videos shall be made
available by the public agency to the requesting party for viewing on the premises of
the public agency, or a mutually agreed upon location, at the request of . . . [a]ny
victim depicted in the photographs or videos, his or her immediate family, or legal
representative.” KRS 61.878(1)(q)1.a. Here, the Appellant argues he is the legal
representative of the family of the deceased victim who is depicted in the photographs
and video of the officer-involved shooting. While that may be true, this fact alone does
not entitle the Appellant to inspection of the records because KRS 61.878(q)1.a. is an
exception to the exception of KRS 61.878(1)(q). Thus, if KSP had denied the
Appellant’s request on the basis of KRS 61.878(1)(q), then the Appellant could have
invoked KRS 61.878(1)(q)1.a. to inspect the records anyway. But here, KSP did not
invoke KRS 61.878(1)(q) as a basis to deny the request. It invoked KRS 61.878(1)(h)
and KRS 17.150(2), which the Appellant admits are applicable exemptions. As such,
KRS 61.878(1)(q)1.a. does not apply.
The Act presumes public records are subject to inspection unless an exception
applies. Even when an exception applies, there may be an exception to that exception
that tilts the scales back in the direction of requiring inspection. KRS 61.878(1)(q)1.a.
is an exception to the exception of KRS 61.878(1)(q), not a trump card that supersedes
any other exception in KRS 61.878(1) applicable to the inspection of records. If an
agency does not invoke KRS 61.878(1)(q), then an exception to that exception has no
bearing on the analysis. And here, the Appellant does not challenge KSP’s other
claimed exceptions in support of its denial. Accordingly, KSP did not violate the Act
when it denied the Appellant’s request.
which is prohibited or restricted or otherwise made confidential by enactment of the General
Assembly.”A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#484
Distribution:
Nick Horne
Samantha A. Bevins
Abbey Hub
Stephanie Dawson