City of Fort Thomas v. Cincinnati Enquirer
2013 Ky. LEXIS 375
| Ky. | 2013Background
- ORA allows open records with strict exemptions; law enforcement exemption at KRS 61.878(l)(h) permits withholding records if release would harm by premature information release in a prospective action.
- City denied Cincinnati Enquirer’s ORA request for the Fort Thomas police file from a homicide investigation, invoking the law enforcement exemption.
- Newspaper challenged the blanket application of the exemption given records already disclosed or irrelevant to an ongoing or future enforcement action.
- Trial and appellate courts held the exemption could not be blanket; required particularized showing of harm tied to the specific records.
- This Court affirmed in part and remanded for a more particularized showing by the City, rejecting blanket exemption and Skaggs-based broad readings.
- Court clarified burden on agency to identify categories of records and articulate concrete harms to support withholding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether law enforcement exemption is blanket. | Enquirer: blanket exemption improper; must limits. | City: exemption can blanket apply to all records. | Exemption not blanket; must show concrete harm for specific records. |
| What showing is required to invoke the exemption? | Harm must be shown for each record; prospective action suffices. | Any prospective action allows withholding. | Agency must articulate factual basis showing concrete harm; not mere speculation. |
| Relation to Skaggs ruling; is blanket exemption implied? | Skaggs supports blanket exemption for ongoing prosecutions. | Skaggs not controlling for non-prosecutor records. | Skaggs does not mandate blanket exemption; overruled on breadth; tailored showing required. |
Key Cases Cited
- Skaggs v. Redford, 844 S.W.2d 389 (Ky.1992) (prosecutor files exempt; not controlling for other records; harm analysis required for non-prosecutor files)
- Bowling v. Lexington-Fayette Urban County Gov’t., 172 S.W.3d 333 (Ky.2005) (agency bears burden of proving exemption; de novo review standard)
- Commonwealth, Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky.2008) (benefits of statutory construction; review standards for ORA claims)
- Bevis v. Department of State, 801 F.2d 1386 (D.C.Cir.1986) (need for meaningful categories to tie harm to records; helpful framework)
- Lesher v. Hynes, 945 N.Y.S.2d 214 (N.Y.2008) (requirement of factual basis for exemptions under public access laws)