25-ORD-401 – Henry Foster/Kentucky State Police

Opinion Content:

December 15, 2025

In re: Henry Foster/Kentucky State Police

Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it withheld records under KRS 61.878(1)(h)
that, if disclosed, could harm its investigation through the premature
disclosure of information to be used in a prospective law enforcement
action.

Open Records Decision

Henry Foster (“Appellant”) submitted a request to KSP seeking all written and
video records related to the shooting of an identified individual. In response, KSP
denied the request under KRS 61.878(1)(h) and explained that disclosure would harm
the agency and its investigation by “creating bias in the jury pool from which the
Grand Jury will be selected.” This appeal followed. 1

KRS 61.878(1)(h) exempts from disclosure “[r]ecords of law enforcement
agencies . . . that were compiled in the process of detecting and investigating
statutory or regulatory violations if the disclosure of the information could pose an
articulable risk of harm to the agency or its investigation by revealing the identity of
informants or witnesses not otherwise known or by premature release of information
to be used in a prospective law enforcement action.” However, this exemption “shall
not be used by the custodian of the records to delay or impede the exercise of rights
granted by” the Act. Id. When a public agency relies on KRS 61.878(1)(h) to deny
inspection, it must “articulate a factual basis for applying it,” such that the risk of
harm exists “because of the record’s content.” City of Fort Thomas v. Cincinnati
Enquirer, 406 S.W.3d 842, 851 (Ky. 2013).

1 KSP produced some responsive records with information redacted under KRS 61.878(1)(a). The
Appellant has not challenged those redactions.

In Shively Police Department v. Courier Journal, Inc., 701 S.W.3d 430 (Ky.
2024), the Supreme Court re-examined KRS 61.878(1)(h) and its proper invocation by
law enforcement agencies. The law enforcement agency in Shively described two
potential risks of harm: “that the requested records could potentially compromise the
recollections of some unnamed or unknown witnesses and that the release of the
records might taint a future grand jury proceeding.” Id. at 439. The Court held that,
although those “may, perhaps, be legitimate concerns,” the agency had “failed to
provide even a ‘minimum degree of factual justification,’ that would draw a nexus
between the content of the specific records requested in this case and the purported
risks of harm associated with their release.” Id. (quoting City of Fort Thomas, 406
S.W.3d at 852).

After Shively was decided, the General Assembly amended KRS 61.878(1)(h)
in 2025. The previous version of the statute allowed the exemption only when “the
disclosure of the information would harm the agency,” rather than when disclosure
“could harm the agency or its investigation.” The use of “would” instead of “could” in
the previous version indicates “a more stringent standard.” 06-ORD-265 n.10. In City
of Fort Thomas, the Court held that the prior language of the statute required “a
concrete risk of harm to the agency,” as opposed to “a hypothetical or speculative
concern.” 406 S.W.3d at 851. “Under the amended version of the statute, where an
agency need only articulate the possibility that release of information poses a threat
of harm to the agency (or its investigation), the ‘risk of harm’ that must be articulated
will look more like ‘hypothetical or speculative’ harms.” 25-ORD-290. 2

Turning to the merits of this appeal, KSP explains that disclosure would harm
its investigation by revealing the identity of witnesses “whose identities remain
confidential, which would expose them to danger and harassment.” The Office has
found that a law enforcement agency adequately invoked KRS 61.878(1)(h) when it
explained that disclosure of requested records would lead to the disclosure of witness
identities not previously known to the public and expose them to danger. See 25-ORD-
333. 3 Separately, KSP also explains that disclosing the record would expose ongoing
leads and identify witnesses not yet known to the public. The Office has also found
such articulations of harm satisfy KRS 61.878(1)(h). See 25-ORD-177.

2 25-ORD-290 more fully discusses the amendments to KRS 61.878(1)(h).
3 KSP also states that a relative of the subject of the request called a KSP Post and threatened the
life of the KSP officer who shot the subject of the request. There is currently an outstanding arrest
warrant for that individual. For this reason, KSP explains, disclosure of records that would identify
that officer would harm KSP and its investigation by exposing that officer to harm. The Office agrees.

To rebut KSP’s invocation of KRS 61.878(1)(h), the Appellant asserts that
KSP’s investigation has concluded because a certified death certificate for the subject
of the request has been issued and—citing KRS 25-ORD-044—complains that KSP
has not articulated “non-speculative” risks of harm. Regarding his first assertion, the
Appellant does not explain why the issuance of a death certificate necessitates a
finding that KSP’s related investigation has concluded. Rather, the Office accepts as
true KSP’s statement that the records related to a “prospective law enforcement
action” both because the related investigation has not concluded and because the
Commonwealth’s Attorney has not declined prosecution. Second, 25-ORD-044 is a
decision interpreting a prior version of KRS 61.878(1)(h). As explained above,
KRS 61.878(1)(h) has been amended, meaning 25-ORD-044 is inapplicable to the
extent it articulates a different standard.

Thus, the Office finds that the release of the requested records “could pose an
articulable risk of harm” to KSP or its investigation. Accordingly, KSP properly
invoked KRS 61.878(1)(h) to withhold and redact the requested records, and thus, did
not violate the Act.

A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to [email protected].

Russell Coleman
Attorney General

/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General

Henry Arnard Foster
Samantha A. Bevins, Staff Attorney III, Office of Legal Services, Justice and Public
Safety Cabinet
Captain Bradley Stotts, Police Captain, Kentucky State Police
Sgt. Zack Morris
Emmalie K. Hankinson, Supervisor, Public Records Branch,
Kentucky State Police
Jonathan Courtwright, Kentucky State Police
Ann Smith, Executive Staff Advisor, Justice and Public Safety Cabinet
Lydia C. Kendrick
Caitlyn R. Clark
Samantha A. Bevins
Michelle D. Harrison
Sara Talarigo
Charles Bates