25-ORD-043
February 13, 2025
In re: Jeffrey Gegler/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) violated the Open
Records
Act
(“the
Act”)
when
it
failed
to
properly
invoke
KRS 61.878(1)(h) to withhold records.
Open Records Decision
Jeffrey Gegler (“Appellant”) submitted a request to KSP for “all body worn
cameras, dashcams, and interior police vehicle cameras for the traffic stop, arrest,
and death of” a specified individual on November 7, 2024. The Appellant also sought
“Dispatch communication audio and logs” as well as “Call logs, texts, and any audio
recordings” regarding the same incident. In response, KSP denied the request under
KRS 61.878(1)(h) because “prosecution has not been declined yet” and “premature
disclosure of records generated in the course of this investigation . . . would cause
irreparable harm” by “creating bias in the jury pool.” This appeal followed.
KRS 61.878(1)(h) exempts “[r]ecords 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 61.878(1)(h). The
Supreme Court of Kentucky has previously held that when a public agency relies on
KRS 61.878(1)(h) to deny inspection, it must “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.” City of Fort Thomas v. Cincinnati
Enquirer, 406 S.W.3d 842, 851 (Ky. 2013).Recently, in Shively Police Department v. Courier Journal, Inc., 701 S.W.3d 430
(Ky. Sept. 26, 2024), the Supreme Court of Kentucky re-examined KRS 61.878(1)(h)
and its proper invocation by law enforcement agencies. That decision reaffirmed the
Court’s previous decisions requiring agencies to describe a “risk of harm [which] must
be concrete, amounting to ‘something more than a hypothetical or speculative
concern.’” Shively, 701 S.W.3d at 438. In Shively, the law enforcement agency
described two potential risks of harm: “that the requested records could potentially
compromise the recollections of some unmade or unknown witnesses and that the
release of the records might taint a future grand jury proceeding.” Id. at 439. The
Court held that although those “may, perhaps, be legitimate concerns,” the agency
had “failed to provide even a ‘minimum degree of factual justification,’ that would
draw a nexus between the content of the specific records requested in this case and
the purported risks of harm associated with their release.” Id. (quoting City of Fort
Thomas, 496 S.W.3d at 852) (emphasis added).1
Next, the Court acknowledged “the plight of law enforcement agencies
attempting to lawfully invoke [KRS 61.878(1)(h)].” Id. In describing that “plight,” the
Court stated that, although the Act “requires some degree of factual justification to
prove the agency faces a concrete risk of harm, it is easy to see how a more exacting
requirement could quickly subvert the exemption’s purpose of shielding sensitive
information from public inspection.” Id.2 Noting the possibility of subverting the Act,
the Court described KRS 61.878(1)(h)’s harm requirements as “a tight rope walk”
because “the more factual information the agency offers to support its denial of an
open records request, the more information it has revealed about its records and
ongoing enforcement action.” Id. Having so described the “plight of law enforcement
agencies,” the Court “implore[d] law enforcement agencies to attempt to provide as
many facts and details as reasonably possible to support their justification for denial”
under KRS 61.878(1)(h). Id.3
1
The Court also noted that these concerns, without additional factual justification, “would
seemingly apply universally to any criminal investigation turned felony prosecution.” Shively, supra,
at 439.
2
Indeed, statutes must be interpreted so that they are not rendered “meaningless or ineffectual.”
See Commonwealth v. Shirley, 653 S.W.3d 571, 577 (Ky. 2022) (“The statute must be read as a whole
and in context with other parts of the law. All parts of the statute must be given equal effect so that
no part of the statute will become meaningless or ineffectual.”).
3
The Office notes that the Court’s interpretation of KRS 17.150(2) is particularly burdensome on
law enforcement and could affect the integrity of ongoing investigations and prosecutions. Since 1979,
the Office had consistently interpreted KRS 17.150(2) as making intelligence and investigative reports
exempt from disclosure before a prosecution is completed or declined. See, e.g., OAG 79-582; OAG 79-
387; OAG 83-123; OAG 90-143; 98-ORD-30; 06-ORD-200; 14-ORD-154; 17-ORD-144; 21-ORD-098. In
Shively, the Court upended law enforcement agencies’ decades old reliance on the Office’s consistent
interpretations by finding that KRS 17.150(2) “govern[s] only the mandatory disclosure of ‘intelligenceNow, the Office must determine when a law enforcement agency has “provide[d]
as many facts and details as reasonably possible.” Id. That analysis necessarily
requires an analysis regarding the “specific records requested in this case.” Id.
(emphasis in original). However, the Court did provide some guidance regarding what
a law enforcement agency’s burden looks like at different stages of an investigation.
Specifically, the Court “posit[ed] that [KRS 61.878(1)(h)’s] ‘harm’ requirement is
perhaps an even greater burden for law enforcement agencies to bear at the outset of
a criminal investigation, when the agency has yet to fully determine what facts,
evidence, or records are material to its ongoing or impending law enforcement action.”
Id. Thus, it follows that, at the early stage of an investigation when
KRS 61.878(1)(h)’s harm requirement imposes “an even greater burden,” the degree
of “facts and details” that is “reasonably possible” is lesser than it is at later stages of
an investigation.
The Office has previously held that a law enforcement investigation being at
an early stage is relevant when determining whether the agency has adequately
invoked KRS 61.878(1)(h). See, e.g., 18-ORD-047 (holding that the fact that the law
enforcement action was “at a very early stage” was relevant when KRS 61.878(1)(h)
was invoked to properly deny a request submitted two days after the incident related
to the request); 15-ORD-105 (finding relevant “the early stage in the criminal process”
when KRS 61.878(1)(h) was invoked to deny a request submitted the day after the
incident related to the request); 14-ORD-223 (noting that the “current status of a
criminal prosecution could be a factor effecting the threshold for a showing of harm
to the agency under KRS 61.878(1)(h)”). As such, the Office’s interpretation of Shively
is aligned with nearly a decade of its prior decisions.
At bottom, although the Court acknowledged that concerns regarding witnesses
with untainted recollections or unbiased grand jury pools are legitimate, the Court
made clear that, to properly invoke KRS 61.878(1)(h), a law enforcement agency must
provide a “minimum degree of factual justification” to “draw a nexus between the
content of the specific records” at issue and the agency’s “purported risks of harm
associated with their release.” Shively, 701 S.W.3d at 439. Without linking the
content of the specific records to the purported risks of harm, the threshold “minimum
and investigative reports’ after the related criminal prosecution has been completed or a determination
not to prosecute has been made.” Shively, supra, at 443. Now, the Office’s statutory duty is to
determine “whether the agency violated provisions of KRS 61.870 to 61.884.” KRS 61.880(2)(a). In
making that determination, the Office is bound to adhere to the Court’s interpretation of
KRS 17.150(2) and any other exemption to the Act.degree of factual justification” is not met. However, when an agency is responding to
a request submitted “at the outset of a criminal investigation,” the threshold
“minimum degree of factual justification” that is “reasonably possible” for the agency
is lesser than it is at later stages of the investigation.
Turning now to the merits of this appeal, KSP argues that its response alleged
three facts: (1) its investigation had begun the day before it received the Appellant’s
request; (2) the Commonwealth’s Attorney had not yet made a decision regarding
prosecution; and (3) if a decision to prosecute was made, “premature disclosure of
these records would create a bias in the jury pool from which the Grand Jury would
be selected.” KSP further explained that the grand jurors could “develop preconceived
opinions regarding this incident prior to being presented with all of the relevant
evidence in its entirety.”
Because KSP’s investigation had begun only the day before it received the
request, the “minimum degree of factual justification” that was “reasonably possible”
for KSP is minimal. However, like the law enforcement agency in Shively, KSP
alleges harm in the form of a potentially tainted jury pool but has not provided facts
sufficient to “draw a nexus between the content of the” responsive records “and the
purported risk of harm associated with their release.” Concern that the release of the
responsive records “could potentially create a bias in the jury pool,” absent any
description of the content of the requested records, is a “hypothetical or speculative
concern” that does not satisfy the requirements of KRS 61.878(1)(h). See City of Fort
Thomas, 496 S.W.3d at 851. Accordingly, KSP failed to properly invoke
KRS 61.878(1)(h) to withhold the records, and thus, violated the Act.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General#485
Distributed to:
Jeffrey Gegler
Samantha A. Bevins, Staff Attorney III, Office of Legal Services, Justice and Public
Safety Cabinet
Stephanie Dawson, Official Custodian of Records, Public Records Branch, Kentucky
State Police
Mitchel S. Hazelett, Police Lieutenant, Kentucky State Police