25-ORD-079
March 24, 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 related to a particular
Officer-involved shooting involving a sheriff’s office. The request sought the “Names
of all responding officers”; “Body cam and dash cam footage”; “Use of force reports”;
“Incident reports”; “Arrest reports”; “911 call audio”; and “Dispatch audio.” In
response, KSP denied a portion of the request under KRS 61.878(1)(h) because the
identified incident “occurred 12 days prior to [the Appellant’s] request,” “prosecution
has not yet been declined,” and “premature disclosure of these records, which are
generated during an ongoing investigation . . . could cause irreparable harm” by
“influencing the jury pool for the Grand Jury.” KSP further denied the request for
“Names of all responding officers” because the Act “does not require an agency to
gather information” and advised that it does not possess any additional responsive
records because “the investigation is in its early stages and several records have not
been created.”1 This appeal followed.
KRS 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
1
After the appeal was initiated, the Appellant stated that he “agree[s] with KSP to the extent that
they do not have to provide [him] with unfinished documents nor provide [him] a ‘list’ of the officers
involved.” Thus, only KSP’s denial under KRS 61.878(1)(h) is at issue in this appeal.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 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).2
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
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).
2
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.Turning now to the merits of this appeal, KSP argues that release of responsive
videos and reports “would have posed a significant risk of causing the grand jurors to
develop pre-conceived opinions regarding this incident prior to being presented with
all of the relevant evidence in its entirety,” especially “[a]t such an ‘early stage in the
criminal process.’”
Because KSP’s investigation had begun just twelve days before it received the
Appellant’s request, the “minimum degree of factual justification” that was
“reasonably possible” for KSP is lesser. However, the Office has previously found,
post-Shively, that “[c]oncern 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). 25-ORD-043 (quoting City of Fort Thomas, 496
S.W.3d at 851). Here, because KSP has not described the content of the requested
records, it failed to justify its decision to withhold records under KRS 61.878(1)(h),
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#022
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