26-ORD-190 – Travon Byers/City of Frankfort

Opinion Content:

May 1, 2026

In re: Travon Byers/City of Frankfort

Summary: The City of Frankfort (“the City”) did not violate the Open
Records Act (“the Act”) when it adequately invoked KRS 61.878(1)(h) to
withhold investigatory records.

Open Records Decision

On February 26, 2026, Travon Byers (“Appellant”) submitted a request to the
City seeking records of the City’s police department (“the Department”) related to the
“December 9, 2025, incident and subsequent investigation that occurred on the
campus of Kentucky State University.” In a timely response, the City denied the
request under KRS 61.878(1)(h), explaining that disclosure would harm the
Department 1 and its investigation by “identify[ing] trial witnesses and expos[ing]
them to undue influence, including threats or intimidation.” The City also explained
that release of the records would disclose “investigative details” and lead to
prospective jurors “form[ing] opinions prior to the presentation of evidence.” This
appeal followed.

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

1 “An agency can assert an exemption on the behalf of another agency; however, the agency asserting
the exemption on behalf of another agency must still meet the requirements to assert the exemption.”
15-ORD-038 (finding that a local agency could invoke KRS 61.878(1)(h) to withhold records that would
harm a KSP investigation). Here, the question on appeal is whether the Sheriff’s Office properly
invoked KRS 61.878(1)(h).

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

Turning to the merits of this appeal, the City explained that disclosure of the
requested records would expose potential witnesses to threats or intimidation and
would prejudice prospective jurors. 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. See 25-ORD-333.

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

Accordingly, the City 3 properly invoked KRS 61.878(1)(h) on behalf of the
Department to withhold the requested records, and thus, did not violate the Act. 4

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

Travon Byers, Appellant
Derrick Napier, Frankfort Police Department, Chief
Scott Tracy, Frankfort Police Department, Assistant Chief
Laura Ross, Frankfort City Solicitor
Chermie Maxwell, Frankfort City Clerk

3 After this appeal was initiated, the City stated that it would be providing the Appellant with
redacted records because the Commonwealth’s Attorney confirmed that he would not be taking action
regarding the underlying matter, meaning the records are no longer exempt under KRS 61.878(1)(h).
4 The City separately denied the request because all requested records had been provided to the
Commonwealth’s Attorney’s Office and are therefore exempt in toto under KRS 61.878(1)(h) as
litigation records. KRS 61.878(1)(h) separately provides that “records or information compiled and
maintained by county attorneys or Commonwealth’s attorneys pertaining to criminal investigations
or criminal litigation shall be exempted from the [Act] and shall remain exempted after enforcement
action, including litigation, is completed or a decision is made to take no action.” The Office has
previously stated that this portion of KRS 61.878(1)(h) “only applies to records requested from the
prosecutor.” 24-ORD-126 (citing City of Fort Thomas, 406 S.W.3d at 850 n.5). Importantly, this portion
of KRS 61.878(1)(h) only exempts records that have been “compiled and maintained” by county
attorneys or Commonwealth’s attorneys. Records compiled or maintained by the City (or the
Department) are not records “compiled and maintained” by a county attorney or Commonwealth’s
attorney, even if copies are eventually provided by the City to a county attorney or Commonwealth’s
attorney. Here, however, because the City adequately explained how disclosure of the records would
harm its Department’s investigation, the Office need not determine whether it could have properly
withheld the records on this basis.