For years, it has been almost impossible to use the open records laws to get information from LMPD related to police misconduct. That may be about to change. WDRB reports that Metro Council President David James will sponsor an ordinance “that would limit the amount of time LMPD or any city agency can deny an open records request due to an ongoing investigation to 30 days.“ WDRB notes:
“Kentucky state law allows public agencies to deny open records requests, if the documents involve an open or ongoing investigation.
“The standard denial from LMPD says, ‘Premature release of those records in a public forum could result in prejudice to the potential witnesses and has the potential to adversely color a witness’ recollection of the events.’”
Why LMPD’s denial doesn’t hold water
This “standard denial” is legally indefensible under the rule established by the Kentucky Supreme Court in 2013’s City of Fort Thomas v Cincinnati Enquirer. In that opinion, the Court recognized that a law enforcement agency’s denial of a request for records relating to an ongoing investigation under the “law enforcement exception” to the open records law must be sustained by proof “(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.” Continuing, the Supreme Court held:
“The law enforcement exemption is appropriately 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. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.”
Every time LMPD defaults to its “standard denial,” it violates the open records law, providing nothing like proof of “a concrete risk of harm.” It expresses little more than a “hypothetical or speculative concern” that “could” or “may” be true in literally every criminal case. Other law enforcement agencies employ the popular but equally preposterous boilerplate response that premature disclosure will “taint the jury pool.” Under City of Fort Thomas, LMPD must release any and all investigative records if — based on the records’ content — their release does not pose a concrete risk of harm to the prospective law enforcement action. If it cannot “articulate a factual basis” for withholding each and every individual record In the investigative file — be it the 911 call, the autopsy report, investigators notes, photographs, etc. — LMPD must disclose them on the third business day after receipt of the request — ten days under the temporarily extended deadline established in the Coronavirus Relief Bill, SB 150.
A better idea for President James
Thirty days is entirely too long for the public to wait for nonexempt investigative records. Conversely, thirty days may not be long enough if, because of a particular record’s content, its release poses a concrete risk of harm to the agency in the prospective action. Perhaps President James should propose an ordinance that compels strict adherence to the existing requirements of the open records law. Instead of establishing an arguably arbitrary timeframe for release of all investigative records, his ordinance should mandate that — upon receipt of an open records request — LMPD identify and review all responsive records, immediately release any that are not exempt, and articulate a factual basis for withholding the remaining records if — because of the records’ content — its release poses a concrete risk of harm to LMPD’s prospective enforcement action. President James and the Metro Council “must hold [LMPD] to its burden of proof by insisting that [it] make a sufficient factual showing to justify the [law enforcement] exemption. [LMPD] should provide the requesting party with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim.”
While the value of dramatic and immediate change is apparent, there is equal value in the strict enforcement of a 40-plus year old law that serves both the public’s and the law enforcement agency’s interests. Change begins with the immediate destruction of the culture of secrecy that permeates LMPD. It come from the long overdue recognition that “[t]he open records act is neither an ideal nor a suggestion. It is the law. [LMPD] must permit inspection of public records as required or risk meaningful punishment for noncompliance.” [click_to_tweet tweet=”The open records act is neither an ideal nor a suggestion. It is the law. LMPD must permit inspection of public records as required or risk meaningful punishment for noncompliance.” quote=”The open records act is neither an ideal nor a suggestion. It is the law. LMPD must permit inspection of public records as required or risk meaningful punishment for noncompliance.”]
–30–