26-ORD-112 – Phillip Hamm/McCracken County Sheriff’s Office

Opinion Content:

March 23, 2026

In re: Phillip Hamm/McCracken County Sheriff’s Office

Summary: The McCracken County Sheriff’s Office (“the Sheriff’s
Office”) violated the Open Records Act (“the Act”) when its initial
response did not adequately explain how KRS 61.878(1)(h) applied to
the records withheld. On appeal, the Sheriff’s Office has adequately
invoked KRS 61.878(1)(h) to withhold the responsive records in its
possession. The Sheriff’s Office also violated the Act when it did not
advise that certain requested records do not exist.

Open Records Decision

Phillip Hamm (“Appellant”) submitted a request to the Sheriff’s Office for eight
categories of records. 1 The Sheriff’s Office denied the request because “1) all of the
referenced records were collected by the [Sheriff’s Office] pursuant to a criminal

1 Specifically, the Appellant requested: “1. [a]ny documentation related to communication with law
enforcement agencies in the State of Arizona regarding a traffic stop involving [a specific person] on
or around May 23, 2025”; “2. [c]opies of any information, data, printouts, screenshots, or images
obtained from license plate reader systems, including but not limited to FLOCK Safety cameras,
concerning a [specific] 2018 Dodge Challenger Hellcat”; “3. [c]opies of any photographs taken during
surveillance conducted on or about May 28, 2025, involving a [specific] 2018 Dodge Challenger
Hellcat”; “4. [c]opies of any notes, reports, or documentation collected from interactions with [a specific
person] of Cold Springs Road, as described in the affidavit in support of a search warrant for [a specific
address]”; “5. [a]ny documentation containing the phrase “Confidential Source #377”, dated prior to
May 30, 2025, including but not limited to reports, affidavits, investigative notes, emails, or internal
communications.” “6. [c]opies of any emails from Arizona law enforcement agencies, dated between
May 20, 2025[,] and May 30, 2025, regarding the traffic stop of a [specific] 2018 Dodge Challenger
Hellcat”; “7. [c]opies of phone records showing any incoming calls to the . . . Sheriff’s Office from any
Arizona law enforcement agencies on May 23, 2025, including call logs, dispatch records, or telephone
metadata sufficient to identify the date, time, originating agency, and duration of such calls”; and “8.
[c]opies of any photographs taken during surveillance of [a specific address] on May 29, 2025, during
the controlled purchase operation referenced in the affidavit in support of the search warrant for [a
specific address].”

investigation, 2) there is an ongoing criminal prosecution of the subject of the
records . . . and 3) the premature release of the records sought could harm both
the . . . prosecution and the [Sheriff’s Office].” This appeal followed.

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 the 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
response denying a request for records 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 Sheriff’s Office denied the Appellant’s request under
KRS 61.878(1)(h), which 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.”

The Supreme Court of Kentucky has rejected the argument “that the mere fact
that a law enforcement action remains prospective is 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. Moreover, 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).

Here, in its original response and on appeal, the Sheriff’s Office described three
types of potential harm. First, release of the records “could prejudice potential
witnesses and could adversely color their recollection of the events.” Second, the
records’ “release could result in pretrial publicity based on incomplete information,
which could cause a tainted jury pool.” Third, “records related to ‘Confidential Source
#377’ contain information related to ongoing investigations into criminal activity by”
the Sheriff’s Office and release of those records “could harm those ongoing
investigations” or reveal “the identity of informants, not otherwise known.”

To start, each of the Sheriff’s Office’s descriptions of harm is sufficient to
invoke KRS 61.878(1)(h). See 25-ORD-290 (“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.” However, an agency invoking KRS 61.878(1)(h) must still explain the
relationship between the records being withheld and the articulated harm. See
Shively, 701 S.W.3d at 439. In the Sheriff’s Office’s original response, although it
described the harms implicated by release, it stated those harms generally, without
explaining what records were implicated by the request and how release of those
records could result in those harms. Therefore, the Sheriff’s Office’s original response
failed to adequately invoke KRS 61.878(1)(h).

But on appeal, the Sheriff’s Office has remedied that deficiency. The Sheriff’s
Office responds individually to each part of the Appellant’s request and explains
which of the three described harms would result from the release of that particular
group of records. Here, this is sufficient to invoke KRS 61.878(1)(h). Accordingly, the
Office cannot find that the Sheriff’s Office violated the Act by withholding its records
under KRS 61.878(1)(h).

Finally, the Sheriff’s Office states for the first time on appeal that it does not
possess records responsive to parts 2, 3, and 8 of the request. “A public agency
violates KRS 61.880(1) ‘if it fails to advise the requesting party whether the’ records
exist.” Univ. of Ky. v. Hatemi, 636 S.W.3d 857, 873 (Ky. App. 2021) (quoting 20-ORD-
010). Here, the Sheriff’s Office failed to inform the Appellant that certain requested
records did not exist. Instead, it issued a nonspecific denial of all responsive records.

Thus, the Sheriff’s Office violated the Act when it initially failed to state whether or
not responsive records existed.

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/ Matthew Ray
Matthew Ray
Assistant Attorney General

Phillip Hamm
Ryan Norman
Cade Foster