Kentucky’s open records laws allow a limited exception for law enforcement agencies to deny records for open investigations if that release would harm the agency or the investigation. But in the current version of House Bill 520, that “would” got changed to a “could.”
The newly substituted bill, which barely scraped through a Senate committee vote Thursday, makes it so that police need only say that disclosing information “could pose a risk of harm,” in order to avoid disclosing it to the public. The original version of the bill specified that risk had to be “articulable” — a requirement removed in the committee substitute.
The legislation would also exempt the state attorney general from having to release criminal investigative records at all, even after that investigation or litigation concludes.
In a rarely seen moment, HB 520 almost didn’t make it past a committee vote. The sponsor GOP Rep. Chris Fugate from Chavies even offered to rescind the newly substituted language and retake the vote, although the new version did eventually pass.
“When investigations are compromised, you obviously know that people can be hurt, injured, or they can even be caused to not be a witness anymore,” Fugate said. “So this bill would protect the police from having to give records that will compromise their investigations until the end of the investigation, until the court system is finished with the case.”
GOP Sen. Lindsey Tichenor from Smithfield said she had concerns that the permissive “could” might allow police too much latitude in deciding which records they want to be open to the public versus those that would create actual harm to the agency.
“The whole reason we have the Open Meetings Act from the beginning (is) that we are transparent to the public,” Tichenor said. “Loosening that is not a good thing to do for the public. Some of these investigations can be open for quite some time.”
It's a sentiment echoed by Democratic Sen. Cassie Chambers Armstrong of Louisville, who said she believed the “could” would mean agencies had the power to restrict records without having to truly prove the harm.
“I practiced open records law for a while before running for office, and it used to be that it was a court determined under this if it would pose a risk of harm,” Chambers Armstrong said. “And it was not enough for an agency to say this could pose harm. If they said that, they would go to court, and a court would decide if it actually poses a risk of harm.”
Supporters of the legislation said that courts would still have the ultimate review of open records denials, should the requester choose to appeal.
Amye Bensenhaver, a cofounder of the Kentucky Open Government Coalition and former assistant attorney general, said the changes would give police agencies sweeping discretion. She said a series of Kentucky Supreme Court cases, particularly beginning in City of Fort Thomas v. Cincinnati Enquirer, have shown that police need to prove disclosing records would actually harm them or their investigation, rejecting the “blanket exemptions” they once claimed for open investigations that can drag on for years.
“That was the standard you have to articulate — a risk of actual concrete harm. Pretty hard standard, to me, really high,” Bensenhaver said. “They were going to have to do what every other public agency has to do, which is to really meet their burden of proof to deny access to records.”
The exception would apply beyond law enforcement criminal investigations, Bensenhaver noted. It would also include “agencies involved in administrative adjudication.” That could include open misconduct investigations or licensing board investigations.
The bill would also exempt criminal investigative and litigation records of the attorney general from public view. While the exception for police is only so long as the criminal investigation is open, the attorney general’s records on that topic would be closed to the public in perpetuity, Bensenhaver said. It’s an exemption currently only applied to county or Commonwealth’s attorneys.
“They're trying to basically give his criminal litigation files permanent protection,” Bensenhaver said.
State government and politics reporting is supported in part by the Corporation for Public Broadcasting.
