City of Fort Thomas v. Cincinnati Enquirer

Summary

The Kentucky Supreme Court held that a police department’s investigatory file is not categorically exempt from disclosure under the Kentucky Open Records Act merely because it relates to a prospective law enforcement action. The agency must articulate a concrete, non-speculative risk of harm from disclosure and separate exempt from non-exempt records or meaningful categories of records. The court also held that an erroneous denial based on a good-faith claim of exemption does not, by itself, establish the willfulness necessary for attorney-fee and cost sanctions.

Holdings

1. A police department's investigatory file is not categorically exempt merely because it relates to a prospective law-enforcement action. Under KRS 61.878(1)(h), the agency must establish that the records were compiled for law-enforcement purposes, that an enforcement action is prospective, and that premature disclosure would harm the agency in an articulable and concrete way.
2. An agency invoking the exemption must articulate a factual basis showing that disclosure of particular records or meaningful categories of records poses a concrete, nonhypothetical and nonspeculative risk of harm or interference with the prospective enforcement action. For voluminous requests, a categorical or generic showing may suffice if the categories are meaningful and linked rationally to the asserted harm, but the agency must identify and review responsive records and disclose all nonexempt records.
3. The City was not shown to have willfully violated the Open Records Act, and the trial court did not abuse its discretion by denying fees and costs. A mistaken denial based on a good-faith and plausible claim of statutory exemption is insufficient to establish the willfulness or bad faith required for sanctions under KRS 61.882(5).

Questions Presented

1. Whether the Kentucky Open Records Act law-enforcement exemption categorically protects a police department's entire investigative file whenever a prospective enforcement action remains possible.
2. What factual showing an agency must make to establish that disclosure of particular records or categories of records would harm the agency in a prospective law-enforcement action.
3. Whether the City was subject to attorney's fees, costs, or statutory sanctions for willfully withholding the requested records.

Disposition

reversed_and_remanded