FRANKFORT, Ky. (WDRB) – A judge has sided with WDRB News in an open records dispute with Kentucky State Police, ruling he could not “fathom” how the law enforcement agency justified withholding the internal investigations of troopers.
Friday's ruling by Franklin Circuit Court judge Thomas Wingate found that reporters are entitled to the records but gives state police 10 days to appeal the decision.
Even if there's an appeal, police must turn over the records to the judge within 10 days.
Wingate also ruled WDRB may make a motion arguing police “willfully withheld” public records and should pay the station’s attorney fees and other costs.
State police have for years refused to turn over internal investigations of troopers to the media and citizens, despite numerous rulings by the Kentucky Attorney General’s office that the records should be made public.
The agency has argued the investigations are for “administrative purposes only” and statements from troopers are “preliminary in nature.” In addition, police have said troopers are told their interviews will not be made public.
But Wingate ruled that the records were used by Commissioner Rick Sanders in internal investigations that the department admits are closed.
“The Court cannot fathom how the requested records could be considered preliminary and exempt” under state law, Wingate ruled Friday, just days after hearing arguments in the case.
During a hearing on June 19, attorney Jon Fleischaker, who represents WDRB, said police have “stonewalled” requests for internal investigations for years even though the “law is clear” that the records are open to the public.
“We just have the state police saying 'no' to everything,” Fleishaker told the judge.
Wingate confirmed with Cody Weber, a state police attorney who filed the lawsuit against WDRB, that the internal investigations had concluded.
Weber declined to comment after the hearing, referring a reporter to the department's public spokesman, Sgt. Josh Lawson.
Lawson said Monday that he would check to see if police planned to appeal or wanted to comment on Wingate's ruling.
Lawson has said that filing a lawsuit against WDRB is, by law, the only way to appeal the attorney general's ruling. And until the appeals court rules in a similar pending case, he said "KSP will continue to follow its longstanding interpretation of the Open Records Act."
In April, the Kentucky Attorney General’s office ruled the department had violated the state public records law by refusing to turn over five investigative files and one internal affairs investigation, including probes into troopers who kicked and struck a handcuffed Harlan County man during a 2016 arrest.
In the lawsuit filed against WDRB on May 9, the department called the attorney general’s ruling “erroneous” and asked Wingate to delay turning over the records until a similar case has been decided by the Kentucky Court of Appeals.
In that case, state police filed a lawsuit in 2016 against a citizen, Lawrence Trageser, after the attorney general sided with Trageser and ruled that investigation files must be released. Wingate affirmed the ruling in May 2017, but state police appealed. The case is pending.
Wingate pointed out in court last week that Trageser does not have an attorney and is representing himself, likely a factor in the case’s delay.
In his ruling Friday, Wingate said that while the cases are similar, WDRB is entitled to move forward and put forth its own arguments.
At issue in one set of records sought by WDRB is an August 2016 incident involving Lewis Lyttle of Harlan County. State police initially said Lyttle did not follow orders, became combative and assaulted officers as they tried to arrest him outside a hospital.
But cellphone videos and more than a dozen sworn statements from eyewitnesses painted a different picture, and were the focus of a wrongful arrest and assault lawsuit against police.
State police eventually paid the man $130,000 and an internal investigation concluded that one of the officers used excessive force.
Sgt. Rob Farley was suspended 120 days and demoted from sergeant to trooper. None of the other officers were punished.
On Jan. 15, 2019, WDRB asked for the internal investigations and responses from all of the troopers involved, along with documents in other use-of-force cases.
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.
Despite the department’s mandate of enforcing laws enacted by the state, state police have 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.
And 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.
By comparison, the Louisville Metro Police Department routinely provides similar records of officers involved in use-of-force incidents.
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.
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