Kentucky bill that could limit public access to law enforcement records speeding through legislature

Yahoo

05-03-2025

A bill critics have warned could allow law enforcement to withhold records from Kentucky Open Records Act requests without proving how their release would harm investigations cleared the House with ease on Tuesday afternoon in a 78-21 vote.
It now moves on to the Senate.
Kentucky House Bill 520 would strike one word and add a handful more to the commonwealth's open records law.
But if enacted, critics argue, those tweaks in HB 520 would fly in the face of a Kentucky Supreme Court ruling last year and allow law enforcement agencies to arbitrarily withhold some records by not having to show how disclosure would harm an investigation or prosecution.
Law enforcement agencies currently do not have to turn over records 'if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication.'
But HB 520, introduced by five Republican lawmakers, strikes the word 'would' in the law, replacing it with 'could pose an articulable risk' of harm.
Amye Bensenhaver, a former assistant attorney general who is the co-founder of the Kentucky Open Government Coalition, said the change from "would" to "could" would allow law enforcement agencies to skirt the open records law by citing speculative harm to investigations.
'Under current law, and under 'Shively,' you have to prove that there's a risk of concrete harm. Not hypothetical, not speculative,' she told The Courier Journal last month.
Kentucky law enforcement agencies, including the Louisville Metro Police Department, have routinely withheld records using boilerplate language citing open investigations.
However, in a landmark ruling last year, the Kentucky Supreme Court determined the Shively Police Department violated the open records law by withholding records related to a fatal police chase and citing the potential risk to their ongoing investigation when The Courier Journal requested them. While Shively Police cited the open investigation exemption, the Supreme Court found they failed to describe how the disclosure of documents would harm the investigation.
At the time of the ruling, Michael Abate, a First Amendment lawyer representing The Courier Journal in the case, called it a 'watershed' moment.
'It makes clear that agencies can't just say 'you don't get information because we're still investigating it' or 'there's some court case that is pending.' They have to do what the open records act says,' he said.
More: 'Watershed' decision: Kentucky Supreme Court says Shively Police violated open records act
The bill's main sponsor is Rep. Chris-Fugate, R-Chavies, who spent 22 years with the Kentucky State Police.
He said the intent of his legislation is to protect those involved with active cases, as well as the success of an investigation.
'In the drug world, when I was doing drug investigations, it could get a police officer killed or a confidential witness killed if they're not aware that their names have been given out,' he told The Courier Journal last month. 'That's all I'm trying to do — just protect the people that I worked with and that I worked for.'
Drug cases are so sensitive and dangerous, he added, that when he worked them, he would not discuss their details with colleagues unless they were part of the investigation.
'It was all confidential because it's too dangerous of a world and a job for everybody to know what's going on as far as investigations,' he said.
Fugate said he is fine with disclosing records after a case is over, and that law enforcement agencies must still explain the risk that handing over records would pose. Speaking to The Courier January in February, before the legislation received a hearing, Fugate said he was not familiar with the "Shively Police Department v. Courier Journal" Supreme Court decision.
Like Fugate, three of the bill's other four sponsors have law enforcement backgrounds.
On Tuesday, there was little discussion on the House floor about HB 520, save for Rep. Tina Bojanowski, D-Louisville, asking Fugate how the bill could impact confidential informants.
In response, Fugate said when he was doing drug investigations, "an open records request would have hindered my investigation, and it would have put the life of the confidential informant, or undercover police officer, in jeopardy because of the open records that would have been released."
Following the vote, Rep. Anne Donworth, D-Lexington, said she voted against the bill because of the "perception from the public that they might not be able to get access to law enforcement records."
She added that there were already law enforcement exemptions from the open records law.
"I don't believe this bill is necessary," she said.
HB 520 similarly coasted through the State Government Committee in just minutes last week, receiving only two 'no' votes and one abstention.
Nobody testified against the bill in its committee hearing.
Bensenhaver, the Kentucky Open Government Coalition co-founder, later wrote she was unable to speak against the bill after experiencing a 'freakish medical emergency' at the statehouse.
After watching video of the committee hearing, she said the coalition's concerns about the bill 'are greater than ever.'
And in a statement ahead of Tuesday's vote, Bensenhaver's Kentucky Open Government Coalition said: "In a word, HB 520 creates a laxer, looser, and less onerous standard for denying the public access to records in an open case."
The Kentucky Press Association, which represents newspapers across the commonwealth, also did not testify against the bill last week. However, in a Feb. 14 blog post, KPA President David Thompson said the organization had "concerns" about the bill and said it is "meant to overturn the Supreme Court's" ruling last year.
Meanwhile, the ACLU of Kentucky said they oppose HB 520, calling it an "open records loophole for law enforcement."
More: 1 dead after response from Louisville Metro Police's SWAT team in Shawnee neighborhood Tuesday
Reach reporter Josh Wood at [e-mail] or on X, formerly known as Twitter, at @JWoodJourno.
This article originally appeared on Louisville Courier Journal: Kentucky public records bill would affect law enforcement records