LOUISVILLE, Ky. (WDRB) -- Police departments can no longer automatically deny the public or media records related to a criminal case without providing good reason, as has been the norm for about 50 years, the Kentucky Supreme Court has ruled.
The ruling released Thursday stems from an appeal by The Courier-Journal for records relating to a July 2020 high-speed pursuit involving officers from the Shively Police Department that resulted in the deaths of three people, including a 9-month old girl.
The newspaper's request for dash and body camera footage, accident reports and 911 calls, among other evidence, was denied by Shively police within 36 minutes with a blanket response that is typical for departments in Louisville and across the state:
"As there is an active criminal case regarding this incident, all of the above requests are denied ...," the department said, citing a state statute that is often called the "law enforcement exemption" to the open records law.
The high court ruled that Kentucky's law enforcement agencies and the state Attorney General's office have been improperly relying on that statute "as a justification to shield their public records from public scrutiny for nearly 50 years."
The cited statute is at odds with others and the intent of legislators in what should be revealed to the public under the state's open records law, the justices ruled.
"The General Assembly does not hide elephants in mouseholes," Justice Michelle Keller wrote in the opinion. "Our primary goal in interpreting the statutes of this Commonwealth is to carry out the intent of the General Assembly."
Police departments have been backed for years by the attorney general's office, which acts as a referee when citizens and news organizations challenge state agencies for access to records. In Thursday's ruling, the high court said that numerous attorney general opinions have allowed the categorical denial of certain law enforcement records before a prosecution has concluded.
In 1976, the attorney general's office first interpreted ambiguous text in a statute to mean that “the records of [a] police department on a particular case may be held confidential while the case is pending," according to the ruling.
"While our interpretation of (the statute) may be in contrast to some open records decisions rendered by the Office of the Attorney General, this Court believes that the intent of the General Assembly has always been to promote the open inspection of public records," the ruling says.
Police departments, the attorney general's office and some judges have continued to allow police to withhold evidence even though the state supreme court ruled in a 2013 case that the open records law does not allow a "blanket exclusion" for law enforcement.
The Shively Police Department "has consistently suggested that the existence of an ongoing criminal prosecution prevents it from releasing the records in this case, we hold that it is premature," the high court ruled.
First Amendment attorney Mike Abate, who represents The Courier-Journal, among other media outlets, called it an "extraordinary" ruling. The newspaper has been fighting for four years to get the records.
"Police departments can't just say 'you don't get anything because we're doing an investigation,'" Abate said.
Police must show in detail how the release of records would harm the investigation or prosecution of a case, he added.
"We see this (denial) every day, and now, the next time there's a major criminal event and the public wants to know what's going on, the agency has to show its records unless they can prove harm," Abate said in an interview. "No more blanket exemptions for law enforcement."
Amye Bensenhaver, a former Kentucky assistant attorney general and board member of the Kentucky Open Government Coalition, said in a tweet that the ruling is "a major victory for open government, & a major blow to police secrecy as the KY Supreme Court flatly rejects the longstanding law enforcement view that all records in an open investigation are shielded from public inspection until prosecution is concluded."
When the newspaper and Shively police argued the case in circuit court, police gave a more thorough response as to why the evidence should not be released, including an affidavit from the chief.
However, the supreme court ruling said the arguments from Shively did "little to demonstrate what harm would befall the SPD or Commonwealth's Attorney should these records be released."
The Shively civil case has been sent back to Jefferson Circuit Court, where the department will have to prove to a judge that turning over evidence will have adverse consequences to the ongoing criminal case. The circuit court judge will also rule as to whether Shively "willfully" violated the open records act and would have to pay for the newspaper's legal bills.
Previously, the circuit court judge in the case sided with police in denying the records because the criminal case was ongoing. The Kentucky Court of Appeals overturned that decision and Shively appealed to the Supreme Court.
The criminal case is still pending in Jefferson Circuit Court. A murder trial has been scheduled for May 20, 2025.
Supreme Court Special Justice Justin Key, who was appointed to hear this case because of the recusal of one of the justices, disagreed with the high court's position on releasing records while a case is pending, saying "the majority's interpretation will change decades of Attorney General guidance."
He noted that the Attorney General's office argued this new interpretation of the law "has the potential to harm future prosecutions in our Commonwealth if intelligence and investigative reports are subject to public inspection earlier than intended."
Key also argued that the justices gave no weight to the argument that releasing important intelligence and investigative reports prior to prosecution could "distort witness memories or bias jurors."
The majority opinion of the court, however, said that to allow blanket denials from police renders a "meaningful portion of the Open Records Act meaningless."
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