26-ORD-109 – La’Daya Daniels/Ashland Police Department

Opinion Content:

March 19, 2026

In re: La’Daya Daniels/Ashland Police Department

Summary: The Ashland Police Department (“the Department”) violated
the Open Records Act (“the Act”) when it withheld records under
KRS 61.878(1)(h) but failed to identify the types of records or explain
how the release of the records would harm it in a prospective law
enforcement action. The Department did not violate the Act when it
denied a request for records it does not possess.

Open Records Decision

La’Daya Daniels (“Appellant”) submitted a request to the Department for “all
public records related to any [Department] responses to” a specific address on any
date “officers were called or responded.” The Appellant explained that her request
was related to incidents involving her and another individual. 1 The Department
denied the Appellant’s request under KRS 61.878(1)(h) because two “cases are
currently open, actively being investigated, and have been sent to the prosecuting
attorney’s office for review” and “[r]eleasing the entire case before the investigation
has been completed . . . would negatively impact the investigation and judicial
process.” 2 The Department also informed the Appellant that it is not the custodian of
records for “911 tapes, dispatch records, or CAD logs” and suggested the Appellant
contact the Boyd County Regional Public Service Communication Center and
provided their address. This appeal followed.

1 The Appellant also requested “any 911 calls regarding [the Appellant] at this residence.” The
Appellant specified that any response from the Department should include “all incident or offense
reports, calls for service records, CAD logs, 911 recordings, and names of responding officers.”
2 The Department informed the Appellant that, once the case has been adjudicated or prosecution
has been declined, it could “reevaluate the release of the requested information.” The Department
further stated it could provide redacted copies of the records to the Appellant after payment of a
copying fee.

Upon receiving a request to inspect public records, a public agency must
determine within five business days whether to grant the request or deny it.
KRS 61.880(1). If an agency chooses to deny the request, it “shall include a statement
of the specific exception authorizing the withholding of the record and a brief
explanation of how the exception applies to the record withheld.” Id. An agency
denying a request must explain the denial by “provid[ing] particular and detailed
information,” not merely a “limited and perfunctory response.” Edmondson v. Alig,
926 S.W.2d 856, 858 (Ky. 1996). “The agency’s explanation must be detailed enough
to permit [a reviewing] court to assess its claim and the opposing party to challenge
it.” Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013). Here, the
Department’s stated basis for denial in its initial response was that “cases are
currently open, actively being investigated, and have been sent to the prosecuting
attorney’s office for review” and that “[r]eleasing the entire case before the
investigation has been completed . . . would negatively impact the investigation and
judicial process.”

KRS 61.878(1)(h) exempts from disclosure “[r]ecords of law enforcement
agencies or agencies involved in administrative adjudication 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 or administrative adjudication.” “[T]he mere fact that a law
enforcement action remains prospective is [not] enough to establish that disclosure of
anything from a law enforcement file constitutes ‘harm’ under the exemption.” City
of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013). Instead, the
agency must “identif[y] the particular kinds of records it holds and explain[ ] how the
release of each assertedly exempt category would harm the agency in a prospective
law enforcement action.” Id. at 851. Here, the Department denied the Appellant’s
access to “information in its entirety,” without identifying the types of records
contained in that “information” or explaining what risk of harm associated with each
type. Thus, the Department’s initial invocation of KRS 61.878(1)(h) violated the Act.

On appeal, the Department continues to deny the Appellant’s request under
KRS 61.878(1)(h) by asserting only that “[p]remature disclosure of the investigative
files would jeopardize the investigation and potential prosecution, and could
negatively impact the integrity of the judicial process.” Simply put, the Department
asserts only that harm could result from disclosure without identifying the harm or

its relation to the records requested. That is not enough to invoke KRS 61.878(1)(h). 3
Therefore, the Department violated the Act when it withheld records under
KRS 61.878(1)(h) without sufficiently explaining its reliance on that exemption.

Turning to the Appellant’s request for 911 audio, dispatch records, and CAD
logs, the Department stated affirmatively, both initially and on appeal, that it does
not possess these records. Once a public agency states affirmatively that it does not
possess any responsive records, the burden shifts to the requester to make a prima
facie showing that the records exist and that they are within the public agency’s
possession, custody, or control. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t,
172 S.W.3d 333, 341 (Ky. 2005). If the requester makes a prima facie showing that
the records do or should exist and are in the agency’s possession, “then the agency
may also be called upon to prove that its search was adequate.” City of Fort Thomas,
406 S.W.3d at 848 n.3 (citing Bowling, 172 S.W.3d at 341). To make a prima facie
showing that the agency possesses or should possess the requested records, the
requester must provide a statute, regulation, or factual support for that contention.
See, e.g., 23-ORD-207; 21-ORD-177; 11-ORD-074.

Here, the Appellant does not attempt to make a prima facie showing that the
Department possesses any responsive 911 audio, dispatch records, or CAD logs.
Therefore, the Department did not violate the Act when it could not provide the
Appellant with records that it does not possess.

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].

3 The Department also asserts that “Kentucky law and longstanding Attorney General precedent
recognize that records compiled in the course of detecting and investigating criminal activity may be
withheld in their entirety while an investigation is active and pending prosecutorial review.” But
without explaining the harm associated with disclosure, the Office cannot affirm the Department’s
reliance on KRS 61.878(1)(h).

Russell Coleman
Attorney General

/s/ Matthew Ray
Matthew Ray
Assistant Attorney General

La’Daya Daniels
Susan Maddix
Andrew K. Wheeler, Esq.