26-ORD-097 – Danny Maiden/Kentucky State Police

Opinion Content:

March 16, 2026

In re: Danny Maiden/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. KSP also did not violate the Act when it denied a request for
information. The Office cannot resolve the factual dispute about the
content of the records produced.

Open Records Decision

Danny Maiden (“Appellant”) submitted a request to KSP seeking “any and all
documents” related to an investigation involving a specific KSP employee and Carroll
County law enforcement agencies. The Appellant specified that he sought records
created between May 2023 and January 29, 2026. The Appellant also requested the
names of investigators or contacts at the Federal Bureau of Investigation or the U.S.
Attorney’s Office who assisted “on the criminal case.” In response, KSP provided the
Appellant with the initial Kentucky Incident-Based Reporting System (“KYIBRS”)
Report concerning this investigation, excluding the narrative portion. KSP explained
that it was withholding the narrative portion and certain parts of the investigation
file 1 under KRS 61.878(1)(h) and explained that disclosure would harm the agency
and its investigation by (1) “compromising the recollections of those witnesses that
investigators have not interviewed yet and those who might ultimately be testifying
at trial” and (2) allowing “jurors to develop preconceived opinions regarding this
incident prior to being presented with all of the relevant evidence in its entirety.”
This appeal followed.

1 Specifically, KSP stated it was withholding “five audio recordings and a written complaint.”

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).

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

2 25-ORD-290 more fully discusses the amendments to KRS 61.878(1)(h).

Turning to the merits of this appeal, KSP explains that disclosure of the
requested records would harm its investigation because they “contain[ ] interviews
with possible victims, including a juvenile” and “interviews with [the] Appellant.”
KSP explains that disclosure will “impact the memories of witnesses and make it
difficult for investigators to determine whether those memories were impacted by
reviewing the materials. This is particularly true here, where Appellant is one of the
witnesses at issue.” This articulation of harm is sufficient to invoke KRS 61.878(1)(h).
KSP further explains that disclosure “could potentially hamper the investigation by
giving the public and potential defendants insight into the status and direction of the
investigation.” 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 expose ongoing leads not yet known to the public. See 25-ORD-177. 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.

The Appellant also complains that the KYIBRS report was “incomplete” and
contained “false information.” KSP disputes both claims and explains that that it
produced the KYIBRS report as it existed on the date of its response to the Appellant’s
request. Thus, a factual dispute exists between the parties as to the content of the
redacted material. The Office cannot resolve factual disputes between a requester
and a public agency about the content of the records produced. See, e.g., 26-ORD-017;
22-ORD-246; 22-ORD-010; 19-ORD-083; 03-ORD-061; OAG 89-81. Here, therefore,
the Office cannot resolve the factual dispute between the parties or find that KSP
violated the Act.

Finally, the Appellant asserts that he is entitled to “know who has work[ed] on
this case and the name of the prospective prosecutor.” For its part, KSP maintains
that this is a request for information that need not be granted. The Office agrees. The
Act does not require a public agency to create a record to satisfy a request. See, e.g.,
24-ORD-278; 24-ORD-229; 16-ORD-052. Further, the Act does not require a public
agency to fulfill requests for information. Rather, the Act only requires public
agencies to produce extant public records for inspection. See KRS 61.872(2)(a)
(requiring a request to inspect records to include, inter alia, a description of “the
records to be inspected”). The final part of the Appellant’s request sought the names
of individuals associated with the identified investigation. Because this was not a
request for records, KSP did not violate the Act when it did not grant it.

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

Danny Maiden, Appellant
Sara Talarigo
Charles Bates
Captain Bradly Stotts
Sgt. Zack Morris
Emmalie K. Hankinson, Supervisor, Public Records Branch,
Kentucky State Police
Jonathan Courtwright, Kentucky State Police
Ann Smith, Executive Staff Advisor, Justice
Nathan Goens
Lydia Kendrick, Kentucky State Police, Records Custodian
Caitlyn R. Clark
Samantha A. Bevins