SUNDAY EDITION | KSP plays hardball to keep public records under wraps, review finds
LOUISVILLE, Ky. (WDRB) – When WDRB News asked Kentucky State Police earlier this year for a copy of the settlement the department reached with a Harlan County man who had been beaten by troopers while handcuffed, the agency’s response was short, concise and false.
KSP’s in-house attorney said no settlement existed, and, even if it did, “any documents related to a possible settlement are protected by attorney-client privilege.”
But a settlement did exist. In fact, state government had already cut a $130,000 check to the man who was beaten in custody, according to documents WDRB News eventually obtained from the Kentucky State Treasurer. And according to the Kentucky Open Records law, the settlement is public record.
The hardball response was far from unusual for KSP.
Despite the department’s mandate of enforcing laws enacted by the state, KSP has violated Kentucky’s Open Records law more than any other state or local government agency over the last five years, WDRB News found after reviewing hundreds of records disputes adjudicated by the state attorney general’s office.
The attorney general’s office, which acts as a referee when citizens and news organizations challenge state agencies for access to records, has issued 33 opinions finding KSP violated the law since 2013.
The University of Louisville, which has been heavily criticized by the media and an internal audit for repeatedly skirting the open records act, had 30 violations.
State police “do not like the proposition that the public has a right to know how they are handling matters, and they have always been recalcitrant in terms of complying with the clear mandate of the open records law,” said Jon Fleischaker, the state’s premier First Amendment attorney representing news outlets.
Fleischaker, of the Louisville firm Kaplan & Partners LLC, helped write Kentucky’s Open Records law in 1976.
“When they refuse to give news organizations or regular citizens what the law has required to be public for years and years, one has to assume they are doing it knowing they are breaking the law,” he said.
Fleischaker, who has represented WDRB News and others challenging KSP denials, said even when the attorney general finds the agency has violated the law, the agency often challenges the rulings in court, in essence spending taxpayer dollars to hide public records.
The court cases delay the release of records for months or years and force citizens and media to spend thousands of dollars on attorney fees to preserve their chance to get access to the records.
In 2017, after KSP filed a lawsuit against a man who won an attorney general ruling for records, a Franklin County judge ordered the department to release investigative documents that led to disciplinary action against a trooper. Yet KSP has continued to appeal the ruling and defied numerous attorney general rulings asking for similar internal investigation documents.
“The state police appear to have adopted a policy where they are going to try and deep pocket anybody who challenges their right to keep something secret,” Fleischaker said.
A KSP spokesman said Tuesday he would look into the issue and some of WDRB’s questions but did not respond. After WDRB contacted Commissioner Rick Sanders on Friday, Sgt. Josh Lawson sent an email saying “KSP receives more open records requests than any department in our cabinet. We work diligently to answer them all promptly and accurately to the best of our ability.”
The Kentucky Open Records law, as in most states, guarantees that police records are open to citizens unless a specific exemption allows the department to deny access to the information. This includes 911 calls, arrest records, accident reports, mug shots, confessions and other evidence.
Some exemptions include evidence from ongoing cases and records involving juveniles. The law gives agencies three business days to respond to a request for records by indicating whether it will provide the information and when.
Similar open record law issues are playing out across the nation. Last year, for example, the American Civil Liberties Union joined with a journalist, activist and college professor to sue the Los Angeles Police Department for “systemic violations” of California’s public records law.
That lawsuit claims LAPD ignores requests for records or doesn’t respond within the required time frame.
In that case, the ACLU argued public records allow residents to evaluate how law enforcement agencies are performing and helps improve community trust in police, according to the Los Angeles Times.
In reviewing Attorney General opinions, WDRB News found KSP denied records existed when in fact they did; repeatedly refused to turn over internal investigations even though the AG’s office and a judge has concluded they must; claimed requests were too burdensome when in fact they were simple and provided responses that “had no factual basis.”
“Difficulty is an understatement. It is almost impossible” to get records from KSP, said Thomas Clay, a prominent criminal defense attorney in Louisville. “KSP plays everything very close to the vest. They will not produce many things which should be produced routinely without an order from the court. And even then, they resist those orders. The logical assumption is they have something to hide.”
Clay noted that other police agencies, like Louisville Metro Police, are much better at following the state open record’s law.
LMPD, which has more than 1,200 officers compared to KSP’s 870 or so troopers, had only four violations of the state’s open records law since 2013, according to attorney general opinions.
Clay said he is currently in court trying to get a database from KSP about use of force incidents by troopers. He said state police standard operating procedure requires that KSP track use of force incidents but “it’s guarded like the gold at Fort Knox.”
Among the violations found in WDRB’s review:
In 2014, KSP denied a request from a citizen for all complaints made against a trooper and any disciplinary action taken or warnings directed to the trooper. KSP responded that no such records existed.
However, the citizen who filed the request knew complaints existed against the trooper because her son-in-law had filed two complaints himself. He appealed to the attorney general’s office, including in it his two complaints.
KSP argued it deemed the complaints as “correspondence” in what the agency described as “an effort to keep the law enforcement officer’s record free of frivolous complaints.”
And KSP initially denied a request for any leaves of absence by the same trooper, again denying the existence of any. KSP would later acknowledge the response was incorrect, saying the information “may have been overlooked.”
The attorney general’s office noted at the time that KSP’s policies created the potential for police to circumvent the open records law relating to the public’s “right of access” and agency’s “duty to properly manage and maintain its records.”
Around the same time, KSP denied a request by a citizen for a video of the man’s own interaction with troopers at state police headquarters in Frankfort. KSP argued, in part, that providing the five minutes of surveillance video from the agency’s front lobby would be “unreasonably burdensome.” It was not, the attorney general ruled in 2015.
Last year, state police denied a request for body camera footage of a fatal shooting.
The agency’s reasoning? Turning over the footage “could irreparably harm the surviving shooting victims as well as the surviving family of the deceased.”
However, it was the family of the shooting victim who requested the footage – the dead man’s mother. The attorney general’s office ordered the footage to be released.
In another instance from last year, KSP refused to turn over investigative records from a criminal case because it was pending and turning over the documents would “color the recollection of witnesses or bias a jury pool.” In fact, a grand jury had already dismissed the case and the attorney general’s office ruled KSP’s response had “no factual basis.”
In some instances, KSP was found to have ignored open record requests altogether until the attorney general intervened. In another case, KSP attorneys said they never received a request and the attorney general’s office “in the absence of incontrovertible proof” could not rule against the agency.
A spokesman for the attorney general’s office said there are punishments for failing to follow the open records law, including a $25 fine for each day records are improperly withheld as well as costs and attorney fees, if a judge finds the records are willfully concealed.
But getting such a ruling first requires spending money in a court battle.
Terry Sebastian, a spokesman for Attorney General Andy Beshear, said he didn’t know if KSP had ever been fined for violations.
Clay, the defense attorney, said the practical consequences of skirting the records law are not consequential enough to change KSP’s behavior.
“There is this general attitude in KSP that they are above the law,” Clay said.
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