25-ORD-053
February 27, 2025
In re: Holly Harrison-Hawkins/Lexington Police Department
Summary: The Lexington Police Department (“the Department”)
violated the Open Records Act (“the Act”) when its initial response failed
to properly invoke KRS 61.878(1)(h) to withhold records. However, on
appeal, the Department has demonstrated that it properly withheld
records under that exemption.
Open Records Decision
Holly Harrison-Hawkins (“Appellant”) submitted a request to the Department
seeking records related to a special assignment from September 30 to October 2,
2023.1 In response, the Department advised that did not possess records related to
the “Scope and details of the assignment,” but that it was “providing the dispatch log,
citation, and public copy of the report associated with” the specified event. But the
Department stated that “most documentation, including the body-worn camera video”
is exempt under KRS 61.878(1)(h), explaining that “[p]rematurely releasing the case
report and body worn camera footage associated with this open court matter prior to
its closure poses a concrete risk of harm to the prosecution of the case.” This appeal
followed,
and
the
Appellant
challenges
the
Department’s
invocation
of
KRS 61.878(1)(h).2
1
Specifically, the Appellant sought records related to the “Scope and details of the assignment”;
“Personnel on that assignment”: “Documentation related to the active disorder”; “Documentation
related to the utilization of OC spray”; “Names or identifiers of individuals involved in the disorder;”
“Charges or arrests made as a result of that disorder”; “Copies of any BWC footage during the disorder,
utilization of OC spray, through the complete disbursement of involved individuals”; and “Any
subsequent documentation related to this occurrence.”
2
On appeal, the Department states it subsequently located and provided records responsive to the
Appellant’s request related to the “Scope and details of the assignment”; “Personnel on that
assignment”; and “Documentation related to the active disorder.” Further, the Department states that
it possesses no records responsive to the requests for records related to “Documentation related to the
utilization of OC spray”; “Names or identifiers of individuals involved in the disorder”; “Charges orKRS 61.878(1)(h) exempts from disclosure “[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. 2024), the Supreme Court re-examined KRS 61.878(1)(h) and its proper
invocation by law enforcement agencies. The Office has addressed the impact of that
decision in 25-ORD-043 and 25-ORD-044.
The Shively 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
unnamed 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).3
The Shively decision also “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
arrests made as a result of that disorder”; or “subsequent documentation.” Thus, the only remaining
issue is the Department’s withholding of body worn camera video under KRS 61.878(1)(h).
3
The Court also noted that these concerns, without additional factual justification, “would
seemingly apply universally to any criminal investigation turned felony prosecution.” Shively, 701
S.W.3d at 439.what facts, evidence, or records are material to its ongoing or impending law
enforcement action.” Id. Thus, when determining whether an agency has as many
facts and details as reasonably possible to support their justification for denial” under
KRS 61.878(1)(h), the Office notes that “at the early stage of an investigation,” the
“harm requirement imposes ‘an even greater burden,’ [and] the degree of ‘facts and
details’ that is ‘reasonably possible’ is lesser than it is at later stages of an
investigation.” 25-ORD-044 (citing Shively, 701 S.W.3d at 439).
Turning now to the merits of the appeal, the Department’s original response
stated that premature release of records would harm the “prosecution of the case” by
revealing “sensitive and/or intimate details . . . prior to the court having the
opportunity to fully, diligently, and discreetly investigate those details.” The
Department further explained that release of those details would result in “hazards”
such as: “release of case details known only to those directly involved”; “tainting
witness testimony and jury pools”; privacy concerns of “cooperating parties”;
“difficulty in assessing the validity of new information”; and “fear of witness
retaliation.” However, because the Department provided no details about how the
content of the requested records was linked to those hazards, the assertions “would
seemingly apply universally to any criminal investigation turned felony prosecution.”
Shively, 701 S.W.3d at 439; see also 25-ORD-044. Thus, the Department’s initial
response was insufficiently specific to invoke KRS 61.878(1)(h).
However, on appeal, the Department has supplemented its original response.
It now explains that it possesses a body worn camera video that is one minute and
seventeen seconds long, which was recorded roughly “seven to eight minutes” prior to
a shooting in the Lexington area. The video shows “countless citizens” who “could be
a yet to be identified witness to the shooting.”4 Moreover, the Department states there
were two shooters and one “has yet to be identified and remains at large.” Thus,
according to the Department, any “one of these citizens could be of great interest to
the other shooter, who is still at large and who may wish to eliminate witnesses.”
Here, the Department has met its burden by explaining, in detail, how
disclosing the body worn camera video would reveal the identities of potential
witnesses to a shooting where one shooter remains at large. Such disclosure, where
the accused is believed to have participated in a shooting, presents more than a
hypothetical risk of intimidation or harm to witnesses. Moreover, the Department
4
Pursuant to KRS 61.880(2)(c), the Office asked the Department to provide a copy of the withheld
video. Of course, the Office cannot disclose the contents of that record. But the Office can confirm the
Department’s assertion that the video shows the faces of “countless citizens” is accurate.has stated that it does not oppose “releasing a redacted version of the requested video”
with the faces of potential witnesses redacted while leaving unredacted the faces of
officers in the responsive video. Such release of redacted video would comply with the
Department’s obligation under the Act. See KRS 61.878(4) (“If any public record
contains material which is not excepted under this section, the public agency shall
separate the excepted and make the nonexcepted material available for
examination.”) Accordingly, the Department properly invoked KRS 61.878(1)(h) to
withhold and redact the requested video, and thus, did not violate 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
#510
Distributed to:
Holly Harrison-Hawkins
Shannon Penegor, Open Records Supervisor, Open Records Unit, Lexington Police
Department
Michael Cravens, Managing Attorney, Department of Law, Lexington-Fayette Urban
County Government
Evan P. Thompson, Attorney, Lexington-Fayette Urban County Government