Shively Police Department v. Courier Journal, Inc.

• Court: Kentucky Supreme Court
• Decided: September 26, 2024
• Docket: 2023-SC-0033
• Status: Unpublished

Opinion

RENDERED: SEPTEMBER 26, 2024 TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0033-DG

SHIVELY POLICE DEPARTMENT APPELLANT

ON REVIEW FROM COURT OF APPEALS V. NO. 2021-CA-1120 JEFFERSON CIRCUIT COURT NO. 20-CI-005707

COURIER JOURNAL, INC. APPELLEE

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING

After a prolonged, four-year dispute over public records maintained by

the Shively Police Department (“SPD”), and requested by the Courier-Journal,

Inc. (“Courier Journal”) pursuant to the Open Records Act, SPD appeals to this

Court from an adverse decision of the Court of Appeals. Among its several

issues, SPD asks this Court to consider whether it properly invoked the “law

enforcement exemption” to the Open Records Act when it categorically denied

the Courier Journal’s request for public records on the sole basis that those

records pertained to an ongoing criminal case. Having reviewed the record, the

applicable law, and the arguments of the parties, we hold that SPD has not

proven that it adequately complied with the Open Records Act in this instance.

Accordingly, this Court affirms the Court of Appeals and remands to the

Jefferson Circuit Court. I. FACTS AND BACKGROUND

Two SPD officers sped northbound down Jefferson County’s Dixie

Highway for about a mile. The fleeing truck the officers were chasing crossed

into the southbound lane, ran a red light, and struck a car traveling eastbound

at the intersection of Crums Lane and Dixie Highway. All three passengers of

that car, a forty-four-year-old woman, a twenty-one-year-old man, and a nine-

month-old infant, died as a result of injuries they sustained in the crash.

Just minutes before the fatal crash, the night of July 27, 2020, the two

SPD officers had been responding to the report of a potential domestic violence

incident between a man and a woman near a light-colored Nissan truck parked

outside of a restaurant off Dixie Highway. When the officers arrived at the

scene, they approached a truck matching that description, the truck sped off,

and the two officers gave chase. After the ensuing pursuit had ended in fatality,

two occupants of the truck fled on foot. A seventeen-year-old juvenile male,

believed to be the passenger of the truck, was apprehended. A man believed to

be the driver of the truck, twenty-year-old Guy Brison, was arrested four days

later.

According to the record, SPD’s internal policies authorize its officers to

pursue a fleeing vehicle only in instances involving a life-threatening

emergency or if officers have probable cause to believe that the fleeing suspect

has committed a serious violent felony. The day after the crash, SPD issued a

press release stating that the officers had pursued the fleeing truck because

they believed the reported domestic violence victim may have been inside the

2 vehicle and in need of assistance. SPD later publicly confirmed that the

pursuing officers had indeed complied with SPD’s vehicle pursuit policies.

According to the Courier Journal, the content of SPD’s internal vehicle

pursuit policies caused the newspaper to question SPD’s public vindication of

its own officers, and, as a result, the Courier Journal requested multiple public

records from SPD pursuant to the Open Records Act. See KRS 61.870–884. The

Courier Journal specifically sought (1) computer aided dispatch (“CAD”) reports

related to the initial domestic violence report and the fatal collision; (2) related

911 calls; (3) recorded audio communications involving the officers that

pursued the fleeing truck, including their communications with dispatchers

and their supervisory personnel; (4) dashcam and bodycam footage from the

time the officers were dispatched to the time the first fleeing suspect was

apprehended; and (5) related incident and accident reports. 1 Within thirty-six

minutes of receiving the Courier Journal’s open records request, on August 10,

2020, SPD denied the request in full and supported its denial with a single

sentence: “As there is an active criminal case regarding this incident, all of the

above request are denied under the following exclusion rule: KRS 61.878

subsection (1)(h)[.]” 2

Often referred to as the “law enforcement exemption” to the Open

Records Act, KRS 61.878(1)(h) exempts from mandatory public disclosure those

1 The Courier Journal requested these records in five individual open records

requests, but the parties have treated the requests as one encompassing request for purposes of this litigation. 2 SPD’s denial email also quoted the entire text of KRS 61.878(1)(h).

3 “[r]ecords of law enforcement agencies . . . that were compiled in the process of

detecting and investigating statutory . . . violations if the disclosure of the

information would harm the agency by . . . premature release of information to

be used in a prospective law enforcement action[.]” 3 This Court has previously

interpreted the law enforcement exemption to be properly invoked “only when

the agency can 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). “A concrete risk, by definition, must be

something more than a hypothetical or speculative concern.” Id.

After receiving SPD’s rapid and nondescript denial of its open records

request, the Courier Journal sought an injunction in Jefferson Circuit Court

ordering SPD to immediately turn over the public records it had requested. See

KRS 61.882(1)–(2). In its Answer to the Courier Journal’s Complaint, SPD again

maintained that the requested records were exempt from mandatory disclosure

pursuant to the law enforcement exemption. As support for that contention,

SPD proffered an affidavit from its Chief of Police, Colonel Kevin Higdon, in

which he attested that the records “are part of evidence that will be used for

the Commonwealth Attorney to make a decision whether or not further

prosecutorial action will be taken following a criminal investigation,” and that

3 The full text of KRS 61.878(1)(h) also exempts certain records maintained by

agencies engaged in administrative adjudications, as well as records maintained by county attorneys and Commonwealth’s Attorneys.

4 “the release of these records poses a concrete risk of harm to the SPD and

Commonwealth’s Attorney in the prospective action and may hinder the

agency’s investigation.”

SPD further supported its denial of the Courier Journal’s open records

request by citing two other exemptions to the Open Records Act, KRS

61.878(1)(a), which exempts from disclosure records “containing information of

a personal nature where the public disclosure thereof would constitute a

clearly warranted invasion of personal privacy,” and KRS 61.878(1)(l), which

exempts records “the disclosure of which is prohibited or restricted or

otherwise made confidential by enactment of the General Assembly[.]”

Pertaining to the latter exemption, SPD contended that KRS 17.150(2), a

statute residing in a section of the code devoted to “Criminal Records and

Statistics,” allowed it to withhold the requested records. KRS 17.150(2) states

specifically that, “Intelligence and investigative reports maintained by criminal

justice agencies are subject to public inspection if prosecution is completed or

a determination not to prosecute has been made.”

In June 2021, the parties filed competing motions for summary

judgment, and, in September 2021, the circuit court issued an order granting

in part and denying in part the Courier Journal’s Motion for Summary

Judgment. Relevant to this appeal, in the portion of the circuit court’s order

denying summary judgment, the court ruled that SPD had met its burden of

proof under the law enforcement exemption and, thus, the records the Courier

Journal had requested in August 2020 were exempt from disclosure pursuant

5 to KRS 61.878(1)(h). 4 The circuit court ruled that it need not consider whether

SPD was entitled to withhold the requested records pursuant to the “personal

privacy exemption” or KRS 17.150(2).

The Courier Journal appealed the circuit court’s ruling to the Court of

Appeals, which reversed the circuit court in November 2022. See Courier-

Journal, Inc. v. Shively Police Department, No. 2021-CA-1120-MR, 2022 WL

16842295 (Ky. App. Nov. 10, 2022). The Court of Appeals specifically held that

SPD had not sufficiently demonstrated that the records at issue were exempted

from disclosure under the law enforcement exemption, the personal privacy

exemption, or under KRS 17.150(2). Accordingly, the Court of Appeals vacated

the portion of the circuit court’s order granting summary judgment in favor of

SPD and denying summary judgment as to the Courier Journal, and remanded

for further proceedings regarding the release of the requested records. The

4 The portion of the circuit court’s order granting summary judgment in favor of

the Courier Journal pertained to a separate request for public records that the Courier Journal filed with SPD in July 2021. According to the circuit court’s order, the Courier Journal had requested records regarding SPD officer commendations, complaints, and sanctions, as well as SPD’s vehicle pursuit policy. Although the circuit court ordered SPD to produce the records described in the July 2021 request, the parties note, and the record reflects, that the Courier Journal never sought to amend its Complaint to reference its July 2021 request. It appears only that the Courier Journal referenced the July 2021 request during an oral argument on the parties’ competing motions for summary judgment, and filed a Plaintiff’s Notice of Filing Additional Authority with SPD’s denial of that request attached. From our review of the record, it does not appear that the Courier Journal sought for the circuit court to issue a ruling regarding its July 2021 request, but merely referenced the request to illustrate that SPD had repeatedly denied additional requests for public records. Regardless, SPD notes that it chose not to appeal the portion of the circuit court’s order pertaining to the July 2021 request, and instead complied with the order to produce those requested records. The Courier Journal, likewise, indicates that SPD did indeed produce those records. As such, the portion of the circuit court’s order granting summary judgment in favor of the Courier Journal is not before this Court.

6 Court of Appeals recommended that the circuit court conduct an in camera

review of the requested records on remand.

This Court thereafter granted SPD’s Motion for Discretionary Review.

II. STANDARD OF REVIEW

Our appellate standard of review of a trial court’s ruling on a motion for

summary judgment is “whether the record, when examined in its entirety,

shows there is no genuine issue as to any material fact and the moving party is

entitled to a judgment as a matter of law.” Bruner v. Cooper, 677 S.W.3d 252,

269 (Ky. 2023) (quoting Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky.

2010)). “[W]e generally review the grant of summary judgment without

deference to either the trial court’s assessment of the record or its legal

conclusions.” Id. Further, we reiterate that this Court reviews issues

concerning the statutory construction of the Open Records Act, de novo. City of

Fort Thomas, 406 S.W.3d at 849.

III. ANALYSIS

The General Assembly has declared that the “free and open examination

of public records is in the public interest[.]” KRS 61.871. As such, “[a]ll public

records shall be open for inspection by any resident of the Commonwealth,

except as otherwise provided by [the Open Records Act.]” KRS 61.872(1).

The free and open examination of public records “may reveal whether the

public servants are indeed serving the public, and the [Open Records Act’s]

policy of disclosure provides impetus for an agency steadfastly to pursue the

public good.” Ky. Bd. of Exam’rs of Psychs. & Div. of Occupations & Pros., Dept.

7 for Admin. v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 328 (Ky.

1992). “However, the right to examine public records is not absolute[.]” Univ. of

Ky. v. Kernel Press, Inc., 620 S.W.3d 43, 52 (Ky. 2021). The Open Records Act,

accordingly, provides that certain categories of public records are excepted or

exempted from its mandatory disclosure provisions. See KRS 61.878(1)(a)–(s).

Even so, the General Assembly has stated that these exemptions “shall be

strictly construed.” KRS 61.871.

When a public agency invokes an Open Records Act exemption, thereby

denying the public access to its own records, the agency’s obligations in that

circumstance are clear. Kernel Press, Inc., 620 S.W.3d at 52. The agency “shall

include a statement of the specific exception authorizing the withholding of the

record and a brief explanation of how the exception applies to the record

withheld.” KRS 61.880. “The agency’s explanation must be detailed enough to

permit the court to assess its claim and the opposing party to challenge it.” Ky.

New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013). These

requirements apply equally to each record requested from the agency.

Accordingly, in instances where the requester poses a voluminous

request, seeking multiple public records, the agency is not permitted to wholly

deny the request without differentiating between the particular kinds of records

it holds. Kernel Press, Inc., 620 S.W.3d at 54–55 (holding that public agency

improperly treated an entire 470-page investigative file as one record unable to

be separated or compartmentalized). In fact, the General Assembly requires

that “[i]f any public record contains material which is not excepted under [the

8 Open Records Act], the public agency shall separate the excepted and make the

nonexcepted material available for examination.” KRS 61.878(4). While “[t]he

agency is not required to justify nondisclosure on a line-by-line or even

document-by-document basis,” the agency may comply with the Open Records

Act by categorizing its records and explaining how each category is exempted

from disclosure. Kernel Press, Inc., 620 S.W.3d at 54 (citing City of Fort

Thomas, 406 S.W.3d at 851). 5 Further, the burden of proving that a public

record is exempted from mandatory disclosure falls upon the agency asserting

the exemption. City of Hopkinsville, 415 S.W.3d at 81 (citing KRS 61.882(3)).

A. The Law Enforcement Exemption

On appeal, SPD asserts that the circuit court’s grant of summary

judgment was appropriate because the law enforcement exemption, KRS

61.878(1)(h), permits it to withhold the records requested by the Courier

Journal as a matter of law. We disagree.

This Court has previously interpreted the law enforcement exemption to

require an agency invoking the exemption to “show (1) that the records to be

withheld were compiled for law enforcement purposes; (2) that a law

enforcement action is prospective; and (3) that premature release of the records

would harm the agency in some articulable way.” City of Fort Thomas, 406

S.W.3d at 850. The mere existence or prospect of a law enforcement action is

5 We note that SPD’s initial letter denying the Courier Journal’s open records

request was deficient in this respect. Rather than individually or categorically assess each of the records requested by the newspaper, SPD issued a “blanket” rationale for why the entirety of the Courier Journal’s request was exempt from disclosure.

9 alone an insufficient basis to withhold public records pursuant to this

exemption; there must be some potential for harm associated with the

premature release of the agency’s records. As aforementioned, this risk of harm

must be concrete, amounting to “something more than a hypothetical or

speculative concern.” Id. at 851.

Applying this standard, we note preliminarily that SPD’s initial denial of

the Courier Journal’s open records request was statutorily infirm. SPD’s initial

denial letter made no attempt to explain how public inspection of the requested

records would harm the agency’s investigative or prosecutorial efforts. Rather,

SPD’s initial denial briefly stated, “As there is an active criminal case regarding

this incident, all of the above request are denied[.]” This bare justification for

nondisclosure rests on precisely the interpretation of the law enforcement

exemption that this Court rejected in City of Fort Thomas. Id. at 850.

It was only when SPD was brought before the circuit court that it

proffered an explanation for its denial that was somewhat commensurate with

the law enforcement exemption’s “harm” requirement. In his affidavit, SPD

Chief Higdon relevantly attested:

4. That the SPD now submits that the requested records were collected and compiled by the SPD as necessary evidence required for the prosecution of this case, and which records have been presented to the Commonwealth’s Attorney. The requested records which are being withheld are part of the evidence that will be used for the Commonwealth Attorney to make a decision whether or not further prosecutorial action will be taken following a criminal investigation.

5. That the release of these records poses a concrete risk of harm to the SPD and Commonwealth’s Attorney in the prospective action and may hinder the agency’s investigation.

10 6. That any 911 calls place (sic) to SPD relating to the incident would contain information from a caller who would likely be interviewed by SPD in its investigation, and an early release of a 911 call could compromise a witness and recollection of what transpired during the incident and would have a negative impact on the veracity of witness statements relating to this incident and will ultimately taint the grand jury pool if an indictment is sought by the Commonwealth’s Attorney.

7. That, likewise, early release of the audio recordings, CAD reports, dashcam bodycam footage and incident accident reports would harm the agency by compromising witness recollections and statements and tainting the grand jury in this prospective law enforcement action and even more so if a witness or potential grand juror is exposed to a release of only a portion of the evidence withheld thus tainting and compromising their impartiality in this prospective law enforcement action.

We observe that Chief Higdon’s affidavit adequately confirmed that the

requested records were, in fact, compiled during an SPD investigation, and that

the records were to be used in a prospective law enforcement action. The

remainder of Chief Higdon’s affidavit, however, does little to demonstrate what

harm would befall the SPD or Commonwealth’s Attorney should these records

be released. We note that a mere recitation of the legal standard this Court

announced in City of Fort Thomas is not enough to properly invoke the law

enforcement exemption. The agency must articulate some factual basis for

applying the exemption that bears on the record’s content. Id. at 851.

Chief Higdon’s affidavit, however, lacks any facts regarding the content of

the requested records or the prospective law enforcement action that would

purportedly be harmed if those records were subject to public inspection. In

the absence of such facts, we can hardly say that any risk of harm associated

with the release of these records is “concrete.” Rather, in a mere two sentences,

11 Chief Higdon’s affidavit offered only speculative concerns regarding the records’

release that would seemingly apply universally to any criminal investigation

turned felony prosecution—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.

While these may, perhaps, be legitimate concerns, it is clear that SPD 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. at 852.

We are not unsympathetic, however, to the plight of law enforcement

agencies attempting to lawfully invoke the law enforcement exemption. While

the Open Records Act requires some degree of factual justification to prove the

agency faces a concrete risk of harm, it is easy to see how a more exacting

requirement could quickly subvert the exemption’s purpose of shielding

sensitive information from public inspection. Logically, the more factual

information the agency offers to support its denial of an open records request,

the more information it has revealed about its records and ongoing

enforcement action. Accordingly, we acknowledge that satisfying the law

enforcement exemption’s “harm” requirement might indeed resemble a tight

rope walk for some law enforcement agencies. Further, we posit that the law

enforcement exemption’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,

12 or records are material to its ongoing or impending law enforcement action. In

these instances, and with all invocations of the law enforcement exemption, we

simply implore law enforcement agencies to attempt to provide as many facts

and details as reasonably possible to support their justifications for denial.

Where some factual disclosure, even to a limited extent, “would defeat the

exemption, [an] in camera inspection may be necessary, but those cases should

be the exception.” Id.

Here, it is clear, however, that SPD failed to provide even a minimum

degree of factual justification for its reliance on the law enforcement exemption,

nor did SPD move the circuit court to review the requested records in camera.

We also note that SPD further failed to meaningfully differentiate between the

kinds of records the Courier Journal had requested and similarly failed to

address how the risks associated with their release might vary by record.

Accordingly, we hold that, as a matter of law, SPD failed to prove its denial of

the Courier Journal’s open records request was justified pursuant to the law

enforcement exemption. Therefore, the portion of the circuit court’s order

granting summary judgment in favor of SPD and denying summary judgment

as to the Courier Journal on this basis is vacated.

On remand, the circuit court shall conduct further proceedings regarding

the release of these requested records consistent with this Opinion. This is an

opportunity for SPD to provide the necessary factual justifications for its

continued reliance on the law enforcement exemption. We strain to see how the

SPD’s original justifications for nondisclosure of these records—the

13 compromise of witness statements and the tainting of the grand jury pool—

might still pose a threat to some ongoing or prospective law enforcement

action. 6 Nonetheless, SPD again bears the burden of proving that the release of

the requested records “poses a concrete risk of harm to the agency” in some

prospective action, whatever that may be. Id. at 851 (emphasis added). On

remand, we trust the circuit court to properly exercise its discretion whether or

not to conduct an in camera review of the requested records, as described in

KRS 61.882(3).

B. KRS 17.150(2)

Alternatively, SPD has consistently argued throughout this litigation that

KRS 17.150(2) permits law enforcement agencies to categorically withhold

public records relevant to ongoing criminal investigations and prosecutions

without first demonstrating that the release of those records poses a concrete

risk of harm to the agency. Because such an interpretation of KRS 17.150(2) is

obviously in conflict with this Court’s prior interpretations of the law

enforcement exemption, our task is one of statutory construction and

interpretation.

6 According to the unofficial CourtNet record in Commonwealth v. Brison, No.

20-CR-001392, the alleged driver of the fleeing truck that caused the fatal 2020 collision on Dixie Highway has since been indicted on eighteen various counts of murder, wanton endangerment, fleeing or evading the police, etc. The same unofficial CourtNet record indicates that the Jefferson Circuit Court ordered a jury trial in that matter to be scheduled for May 20, 2025.

14 Our primary goal in interpretating the statutes of this Commonwealth is

to carry out the intent of the General Assembly. City of Fort Wright v. Bd. of Trs.

of Ky. Ret. Sys., 635 S.W.3d 37, 44 (Ky. 2021).

We derive that intent, if at all possible, from the language the General Assembly chose, either as defined by the General Assembly or as generally understood in the context of the matter under consideration. We presume that the General Assembly intended for the statute to be construed as a whole, for all of its parts to have meaning, and for it to harmonize with related statutes. We also presume that the General Assembly did not intend an absurd statute or an unconstitutional one. Only if the statute is ambiguous or otherwise frustrates a plain reading, do we resort to extrinsic aids such as the statute’s legislative history; the canons of construction; or, especially in the case of model or uniform statutes, interpretations by other courts.

Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011)

(citations omitted).

First, a reading of the plain language of the statute leads this Court to

conclude that the General Assembly clearly intended KRS 17.150(2) to have at

least some effect on the disclosure of certain public law enforcement records,

for the statute unmistakably states, “Intelligence and investigative reports

maintained by criminal justice agencies are subject to public inspection if

prosecution is completed or a determination not to prosecute has been made.”

However, as made obvious by the prolonged open records dispute before this

Court today, the extent of KRS 17.150(2)’s scope is not manifestly clear on its

face. We, accordingly, look beyond the statute’s plain text to ascertain the

General Assembly’s intent.

KRS 17.150(2) resides in a section of KRS Chapter 17 devoted specifically

to the collection, storage, and dissemination of “Criminal Records and 15 Statistics.” See KRS 17.110–190. Relevantly, KRS 17.140(1) requires that

Kentucky’s Justice and Public Safety Cabinet create a “centralized criminal

history record information system” to be overseen by the Kentucky State Police

(KSP). The term “centralized criminal history records” refers to information

pertaining to a person’s “identifiable descriptions and notations of arrests,

detentions, indictments, information, or other formal criminal charges and any

disposition arising therefrom, including sentencing, correctional supervision,

and release” that is “collected” and “maintained” by the Justice and Public

Safety Cabinet “in a central location.” KRS 17.150(4). It is important to note

that routine centralized criminal history records are unlike the records at issue

in this case; centralized criminal history records are not bodycam footage or

911 calls. Rather, centralized criminal history records seem to bear some

similarity to records colloquially referred to as “RAP sheets.” In fact, the Justice

and Public Safety Cabinet compiles centralized criminal history record

information with the intent to share that information with “participating federal

bureaus, departments, or criminal justice agencies engaged in the

administration of criminal justice programs.” KRS 17.147(6). Further, the

General Assembly has expressly declared that “[c]entralized criminal history

records are not subject to public inspection.” KRS 17.150(4).

Among the Commonwealth’s statutes delineating the collection, storage,

and dissemination of centralized criminal history records, exists a seemingly

unrelated statute that refers instead to the public inspection of “[i]ntelligence

and investigative reports maintained by criminal justice agencies.” KRS

16 17.150(2). The contrast between KRS 17.150(2) and its surrounding statutes

cannot be overstated. In fact, no statute in KRS Chapter 17, other than KRS

17.150(2), refers to law enforcement “intelligence and investigative reports.”

Despite the glaring reality that KRS 17.150(2) seems to be an oddity in a

statutory scheme related to criminal history data, Kentucky’s law enforcement

agencies have relied on KRS 17.150(2) as a justification to shield their public

records from public scrutiny for nearly fifty years.

As authorized by the Open Records Act, the Office of the Attorney

General plays a vital role in resolving open records disputes in this

Commonwealth. Pursuant to KRS 61.880(2), the Attorney General may “review

a public agency’s denial of a request to inspect a public record.” The Attorney

General’s decision is then appealable to the circuit court. KRS 61.882(3). As a

result of the Attorney General’s initial role in resolving open records disputes,

the bulk of the case law applying and interpreting the Open Records Act, and

its exemptions, is dominated by Opinions of the Attorney General. For example,

our research reveals that Opinions of the Attorney General have referenced

KRS 61.878(1)(h), the law enforcement exemption, hundreds of times, while

this Court has only had occasion to discuss that same statute less than a

dozen times. Perhaps recognizing this phenomenon, this Court has previously

stated that “Opinions of the Attorney General are considered highly persuasive

and have been accorded great weight,” although the Attorney General’s

opinions are ultimately not binding on the courts. Carter v. Smith, 366 S.W.3d

414, 420 n.2 (Ky. 2012).

17 Shortly after KRS Chapter 17 was amended in 1976, the Office of the

Attorney General first interpreted KRS 17.150(2)’s ambiguous text, in

conjunction with the law enforcement exemption, to mean that “the records of

[a] police department on a particular case may be held confidential while the

case is pending.” OAG 79-387. Since this decision, multiple Attorneys General

have similarly and consistently interpreted KRS 17.150(2) to allow law

enforcement agencies to withhold public records on the sole basis that those

records relate to a criminal prosecution that is prospective or pending; no

showing of harm is required under the Attorney General’s interpretation. See,

e.g., OAG 90-143 (“[T]he right of public inspection set forth in KRS 17.150(2) is

contingent upon the completion of the investigation and litigation or a

determination having been made not to prosecute.”).

Even though the Office of the Attorney General’s interpretation of KRS

17.150(2), now relied upon by SPD, does indeed have a long history, we note

that most of that history came before this Court decided City of Fort Thomas v.

Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). While the Office of the Attorney

General often cited KRS 17.150(2) as a categorical exemption for law

enforcement records throughout the latter half of the 20th Century, it was also

similarly misinterpreting the Open Records Act’s law enforcement exemption in

a way that failed to meaningfully address the statute’s “harm” requirement.

See, e.g., OAG 87–29; OAG 87–15; OAG 90–64; OAG 91–124; 92-ORD-1287.

For instance, the Office of the Attorney General wrote in September 1993 that,

18 “This Office has previously recognized that pursuant to KRS 61.878(1)(g), 7

investigative files in the possession of a law enforcement agency are not open to

inspection while the case is active.” 93-ORD-106. In this vein, the Office of the

Attorney General construed the law enforcement exemption and KRS 17.150(2)

as companion statutes that each categorically exempted law enforcement

records from public disclosure during the pendency of an investigation or

prosecution. However, in 2013, this Court, as the foremost and final interpreter

of the statutes of this Commonwealth, made clear that the law enforcement

exemption does not exempt law enforcement records from public disclosure

unless the agency invoking the exemption can demonstrate the record’s

“release poses a concrete risk of harm to the agency in the prospective action.”

City of Fort Thomas, 406 S.W.3d at 851. It is against this backdrop that we are

now asked to consider whether KRS 17.150(2) operates to eviscerate the

“harm” requirement of the law enforcement exemption by allowing criminal

justice agencies to withhold certain public records merely by claiming they will

be used in an ongoing or prospective criminal prosecution.

Despite the many years’ worth of Attorney General opinions interpreting

KRS 17.150(2) to allow the categorical nondisclosure of certain law

enforcement records before a related prosecution has concluded, this Court

interprets the statute to have no bearing on whether public records can be

disclosed before a criminal prosecution is completed or a determination not to

7 From 1992 to 1994, the law enforcement exemption was codified at KRS

61.878(1)(g).

19 prosecute has been made. Instead, we interpret KRS 17.150(2) to govern only

the mandatory disclosure of “intelligence and investigative reports” after the

related criminal prosecution has been completed or a determination not to

prosecute has been made. In this respect, KRS 17.150(2) delineates how

“criminal justice agencies” should respond to open records requests for

“intelligence and investigative reports” after a criminal prosecution concludes:

the statute plainly provides that the requested records “are subject to public

disclosure.” The statute then provides four exceptions to that general rule.

Even where a related criminal prosecution has already concluded, intelligence

and investigative reports may, nonetheless, be lawfully withheld when public

inspection of those records may disclose:

(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;

(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;

(c) Information which may endanger the life or physical safety of law enforcement personnel; or

(d) Information contained in the records to be used in a prospective law enforcement action.

KRS 17.150(2)(a)–(d). The statute mandates that the agency citing one of these

exceptions shall bear the burden of justifying its refusal with specificity. KRS

17.150(3).

To hold otherwise, and to interpret KRS 17.150(2) in a manner consistent

with the Office of the Attorney General and SPD, would be to effectively erase

20 the “harm” requirement from KRS 61.878(1)(h) and therefore render a

meaningful portion of the Open Records Act meaningless. Such an

interpretation is unpalatable when we consider our duty to harmonize

conflicting statutes so as to give effect to each of the General Assembly’s

enactments. Ledford v. Faulkner, 661 S.W.2d 475, 476 (Ky. 1983). Going

forward, KRS 61.878(1)(h) and KRS 17.150(2) should be interpreted to act in

concert to address two distinct stages of records disclosure. The law

enforcement exemption shall apply to govern the release of law enforcement

records before a prosecution has been completed, and KRS 17.150(2) shall

apply to direct the release of certain “intelligence and investigative reports”

post-prosecution. The harmony between these two statutes is even more

apparent when one considers that the law enforcement exemption also

instructs that, “Unless exempted by other provisions of [the Open Records Act],

public records exempted under this provision shall be open after enforcement

action is completed or a decision is made to take no action.” KRS 61.878(1)(h)

(emphasis added). As incorporated by KRS 61.878(1)(l), the exceptions to

release listed in KRS 17.150(2)(a)–(d) explain when records may be withheld

post-enforcement action.

In reaching our interpretation of KRS 17.150(2), we also assume that the

same General Assembly which declared that the “free and open examination of

public records is in the public interest” would not drastically alter the force of

the Open Records Act in a statute as peripheral or tangential as KRS 17.150(2).

21 The General Assembly does not hide elephants in mouseholes. Landrum v.

Commonwealth ex rel. Beshear, 599 S.W.3d 781, 791 (Ky. 2019).

While our interpretation of KRS 17.150(2) 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. We, accordingly, strictly

construe KRS 61.878(1)(l) and KRS 17.150(2).

As SPD 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 for SPD to rely on KRS 17.150(2) to withhold those

records.

C. The Personal Privacy Exemption

SPD finally argues that it is entitled to withhold the bodycam and

dashcam footage requested by the Courier Journal, in full, because those

public records are exempt from disclosure pursuant to the Open Records Act’s

“personal privacy exemption,” codified at KRS 61.878(1)(a). SPD specifically

argues that portions of the requested video footage depict the fatal July 2020

car crash on Dixie Highway, and that releasing this footage would violate the

personal privacy interests of the deceased victims and their families. The

Courier Journal conversely argues that it has no interest in the portions of

dashcam and bodycam footage that might depict deceased individuals, and

instead only seeks video footage depicting the high-speed chase on Dixie

Highway and the events immediately preceding that chase.

22 KRS 61.878(1)(a) permits public agencies to lawfully withhold “[p]ublic

records containing information of a personal nature where the public

disclosure thereof would constitute a clearly unwarranted invasion of personal

privacy[.]” To determine whether a public record was properly withheld

pursuant to the personal privacy exemption, a reviewing court conducts a

“comparative weighing” of the competing interests at stake in the record’s

release—those interests being an individual’s interest in personal privacy and

the public’s interest in disclosure. City of Hopkinsville, 415 S.W.3d at 82.

This court is cognizant of the deceased victims of the Dixie Highway

crash and their families’ potential privacy interest in the depiction of their

images that would warrant nondisclosure pursuant to KRS 61.878(1)(a).

However, the Courier Journal has made it abundantly clear that is does not

seek these images. In effect, it is as if the Courier Journal has conceded that

these limited portions of the requested records are indeed exempt from

disclosure. However, the Open Records Act requires that “[i]f any public record

contains material which is not excepted under this section, the public agency

shall separate the excepted and make the nonexcepted material available for

examination.” KRS 61.878(4). Therefore, even if some portions of the requested

video records contain content that is exempt from disclosure, SPD still has a

duty to release the portions of the videos that are not exempted.

SPD makes no meaningful attempt to explain how the remaining

portions of the requested dashcam and bodycam footage are exempt from

disclosure pursuant to the personal privacy exemption. Further, Chief Higdon’s

23 affidavit provides no real justification for the agency’s denial of the Courier

Journal’s open records request pursuant to KRS 61.878(1)(a). Instead, Chief

Higdon’s affidavit merely makes a conclusory assertion that releasing the

entirety of the requested footage would “constitute a clearly unwarranted

invasion of privacy.” Accordingly, this Court is left with little to no facts to aid

in determining whether these remaining portions of the requested footage

“contain[] information of a personal nature,” let alone whether the public

disclosure of that information “would constitute a clearly unwarranted invasion

of personal privacy.” KRS 61.878(1)(a). As such, SPD has failed to meet its

burden of proof under the personal privacy exemption. We hold that the

personal privacy exemption, KRS 61.878(1)(a), is an improper basis to

categorically withhold the entirety of the requested dashcam and bodycam

video in this instance.

D. Costs and Attorney’s Fees

Pursuant to the Open Records Act, the prevailing party in an open

records dispute may be entitled to an award of costs and reasonable attorney’s

fees, if the circuit court finds that the agency willfully withheld public records

in violation of the Open Records Act. KRS 61.882(5). If the records requester

prevails only in part, the circuit court “may in its discretion award him costs or

an appropriate portion thereof.” Id. “In addition, it shall be within the

discretion of the court to award the person an amount not to exceed twenty-five

dollars ($25) for each day that he was denied the right to inspect or copy said

public record.” Id.

24 In determining what constitutes a “willful violation” of the Open Records

Act, this Court has before stated that, “A public agency’s mere refusal to

furnish records based on a good faith claim of a statutory exemption, which is

later determined to be incorrect, is insufficient to establish a willful violation of

the Act.” Bowling v. Lexington-Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 343

(Ky. 2005). “In other words, a technical violation of the Act is not enough; the

existence of bad faith is required.” Id.

On appeal, SPD asks this Court to acquit it of any alleged willful violation

of the Open Records Act. SPD specifically contends that its actions cannot

amount to a willful violation of the Open Records Act, because it denied the

Courier Journal’s open records request relying in good faith on the Office of the

Attorney General’s interpretations of KRS 17.150(2). However, like the Court of

Appeals, we too conclude that any consideration of whether SPD willfully

violated the Open Records Act is premature at this juncture. Because we

remand to the circuit court for further proceedings regarding the release of the

requested records pursuant to the law enforcement exemption, there is not yet

a prevailing party in this action, and we decline to speak to whether SPD

willfully violated the Open Records Act. If the circuit court orders SPD to

release the requested records on remand, we expect the circuit court to make

an appropriate determination regarding costs and fees.

We do note, however, for clarity, that SPD did not seem to rely on KRS

17.150(2)’s text when it initially denied the Courier Journal’s request for public

records. Rather, SPD cited only the law enforcement exemption in its initial

25 mechanical denial of the Courier Journal’s request. Further, SPD invoked an

interpretation of the law enforcement exemption that this Court has expressly

rejected in City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky.

2013).

IV. CONCLUSION

For the foregoing reasons, this Court affirms the Opinion of the Court of

Appeals vacating the portion of the circuit court’s order granting summary

judgment in favor of SPD and denying summary judgment as to the Courier

Journal. We remand for further proceedings regarding the release of the

requested records consistent with this Opinion.

VanMeter, C.J.; Conley, Lambert and Nickell, JJ., and Key and Harned,

S.J., sitting. VanMeter, C.J., Conley, Lambert, Nickell, JJ., and Harned, S.J.,

concur. Key, S.J., concurs in part and dissents in part by separate opinion.

Bisig and Thompson, JJ., not sitting.

KEY, S.J., CONCURRING IN PART AND DISSENTING IN PART: I concur

with the result and most of the reasoning outlined in the majority opinion. I

dissent, in part, to address the interpretation of KRS 17.150(2) that will now be

the law of this Commonwealth, namely that this statute cannot be invoked

until the post-prosecution stage of a case.

The circuit court expressed no opinion on this interpretation. While the

Court of Appeals did, it did not express complete confidence about this

interpretation. Specifically, the Court of Appeals stated (in this case where

prosecution is not yet complete) "[s]o even if KRS 17.150(2) somehow applied, it

26 would not justify the complete withholding of all of the records by itself.”

(emphasis added).

KRS 17.150(2), by its plain text, only applies to intelligence and

investigative reports. The open records request in this case included 911 calls

and bodycam footage. No party to this litigation has cited to any authority that

a 911 call or bodycam footage can be classified as an intelligence or

investigative report.

As such, the Court of Appeals correctly concluded that KRS 17.150(2)

could not be used to withhold all of the records. Combined with the remanding

of the case to the circuit court, that would seem to be enough. This is

particularly true when the circuit court already ruled below (concerning a

separate request) that KRS 17.150(2) could not be used to withhold officer

commendations, complaints and sanctions, and vehicle pursuit policies, as

those items are not intelligence or investigative reports.

This should alleviate any concern that the Attorney General’s long-

standing interpretation (that the statute can be invoked before or during

prosecution) would cause criminal justice agencies to simply respond to open

records requests with the blanket allegation that the requested records are

“intelligence or investigative reports.” Circuit courts will have the power to see

through (and penalize) such arguments.

Regardless, the majority goes further in attempting to address its main

worry that KRS 17.150(2) should not eviscerate the "harm" requirement of the

law enforcement exception. But to the point raised above, criminal justice

27 agencies will likely now just allege blanket “harm” when intelligence or

investigative reports are requested, which could result in even more protracted

litigation for the requestor (given that it may be harder to prove the lack of

“harm” than that an item requested is not an “intelligence or investigative

report.”).

The plain text of KRS 17.150(2) seems to have been distorted by the

appellate litigation in this matter, as initially noted by the Attorney General in

its amicus brief. As further mentioned by the Attorney General, this new

interpretation has the potential to harm future prosecutions in our

Commonwealth if intelligence and investigative reports are subject to public

inspection earlier than intended.

The majority’s interpretation will change decades of Attorney General

guidance, and some of those opinions came after this Court decided City of Fort

Thomas. See 17-ORD-144, which specifically cites City of Fort Thomas, and

notes that "[i]nvestigative reports are nearly always withheld from public

inspection to protect sources of information and techniques of investigation

and also to prevent premature disclosure of the contents to the targets of

investigation, which could thwart law enforcement efforts.” OAG 83-123.

Most important is the plain text of the law: "Intelligence and investigative

reports maintained by criminal justice agencies are subject to public inspection

if prosecution is completed or a determination not to prosecute has been

made." KRS 17.150(2). As briefed by the Attorney General, by providing a

condition for when such reports are subject to public inspection (the language

28 following the "if"), the statute is drained of meaning if these reports are subject

to inspection if the condition is not met.

The Attorney General's interpretation would not render a portion of the

Open Records Act meaningless. As discussed above, KRS 17.150(2) could not

be successfully invoked for most, if not all, of the records requested in this

case, as they are not intelligence or investigative reports. The Attorney General

points out that KRS 17.150(2) is a much more specific and targeted statute

than the pertinent provision of KRS 61, which addresses “[r]ecords” held by

“law enforcement agencies.” Despite these laws being passed very close in time

by the General Assembly, the majority gives no weight to the argument that

greater protection was intended for pre-prosecution intelligence and

investigative reports (which could distort witness memories or bias jurors).

The Attorney General additionally argues that the exception contained in

KRS 17.150(2)(d) is meaningless under the interpretation now adopted by this

Court. But perhaps the current result of this litigation is unsurprising given

the Court's legitimate concern of not allowing a statute found outside of KRS

61 to improperly circumvent the importance of the Open Records Act (and this

Court's related precedent), when in the past the Attorney General and/or law

enforcement potentially attempted to apply KRS 17.150 broader than how it

reads.

But none of that changes its plain language, and on the issue of whether

KRS 17.150(2) can apply to intelligence and investigative reports pre-

29 prosecution, I believe the Attorney General's interpretation that it can is

correct.

COUNSEL FOR APPELLANT, SHIVELY POLICE DEPARTMENT:

Finn Robert Cato Cato Law Office PLLC

COUNSEL FOR APPELLEE, THE COURIER JOURNAL, INC.:

Jon L. Fleischaker Michael Patrick Abate William R. (“Rick”) Adams Kaplan Johnson Abate & Bird LLP

COUNSEL FOR AMICUS, COMMONWEALTH OF KENTUCKY:

Matthew F. Kuhn Assistant Attorney General

COUNSEL FOR AMICUS, KENTUCKY OPEN GOVERNMENT COALITION, INC.:

John Woods Potter Amye Bensenhaver