A police agency can withhold requested documents if the release of those
documents would affect another police agency’s independent investigation that was ongoing.
Attorney General Andy Beshear issued an opinion on Aug. 3, 2016, in In re: The Kentucky Standard/Nelson County Sheriff’s Department, 16-ORD-162.
Attorney General Andy Beshear issued an opinion on Aug. 3, 2016, in In re: The Kentucky Standard/Nelson County Sheriff’s Department, 16-ORD-162.
On June 7, Forrest Berkshire, editor of The Kentucky Standard, requested documents dealing with the shooting death of Derek Downs
in 2009. Sheriff Ed Mattingly notified
Berkshire that the request had been declined at the request of
Commonwealth Attorney Chip McKay on the basis of KRS 61.878(1)(h). Mattingly also spoke with
the lead investigator who thought that releasing the documents may compromise
his investigation. He also stated that after the investigation is closed the
documents will be open for disclosure.
Berkshire appealed the following day, stated that the department’s
investigation into the death was completed in 2009, and the case against the
shooter, Wayne Unseld, was taken to the county’s grand jury, which did not
indict him. Unseld died in June. Berkshire also stated that
the description of harm stated by the sheriff was not specific enough to
satisfy the statute he cited.
Sheriff Mattingly responded it was clear Unseld had shot
and killed Downs in 2009, but Unseld had been murdered. The Bardstown police
were investigating that murder. Because there was some threats to the Downs
family by Unseld, the sheriff believed there was a possibility that
information in the Downs case could relate to the Unseld homicide.
Beshear ruled felt Mattingly “minimally justified
invocation of KRS 61.878(1)(h).” The opinion also cited to City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 850
(Ky. 2013), which says that the law enforcement exception needs to fulfill
three requirements. “(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 come articulable
way.”
Because the sheriff’s office and Bardstown police are both
law enforcement, and Bardstown has an open and ongoing investigation into
Unseld’s murder, the records were compiled in the process of an investigation
of violations. An earlier attorney general opinion had recognized that when two
agencies have concurrent jurisdiction or interest in same matter, records of
one can be withheld under the statute if the disclosure can harm the other
agency’s ongoing investigation (09-ORD-143).
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