26-ORD-148 – Daryl Day/Kentucky Department of Fish and Wildlife Resources

Opinion Content:

April 2, 2026

In re: Daryl Day/Kentucky Department of Fish and Wildlife Resources

Summary: The Kentucky Department of Fish and Wildlife Resources
(the Department”) violated the Open Records Act (“the Act”) when it
initially failed to give a sufficiently detailed explanation of how an
exception to the Act applied to the records withheld. However, the
Department did not violate the Act when it showed how
KRS 61.878(1)(h) applied to the withheld records.

Open Records Decision

Daryl Day (“the Appellant”) submitted a request to the Department seeking
“[r]eports, notes, photographs, body worn camera footage[,] and all other tangible
items related to an accidental shooting” that occurred in Lincoln County on October
18, 2025. In a timely response, the Department denied the request under
KRS 61.878(1)(h), stating that the “matter remains actively under investigation” and
disclosure could “prejudice witnesses, reveal investigative strategies, and adversely
affect any prospective law-enforcement or prosecutorial action.” 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 Department 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.” In City of Fort Thomas v. Cincinnati Enquirer, 406
S.W.3d 842, 852 (Ky. 2013), the Supreme Court of Kentucky 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.” 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,
however, the Department denied the request without identifying the types of records
responsive to the request and without explaining the risk of harm associated with
each specific category. Thus, the Department’s initial response violated the Act.

On appeal, however, the Department has supplemented its response. First, it
explains that responsive records include: (1) “incident, narrative, CAD, [and] medical”
reports; (2) “[p]hotographs of the victim, scene, physical evidence, and other
investigative observations”; and (3) “[r]ecordings compiled in the investigation of this
matter.”

The Department has also more fully explained the harms that could result
from disclosure of the requested records. First, disclosure of the reports “could reveal
witness accounts, officer observations, investigative timelines, evidentiary
assessments, and the development of the case in a manner that could influence
witnesses or compromise the recollections of unidentified witnesses that might
ultimately testify.” Second, disclosure of the photographs “could reveal sensitive
evidentiary details, the condition and location of physical evidence, and the visual
documentation of the scene in a way that could shape or contaminate witness
testimony, affect the recollection of persons later interviewed, or expose details
relevant to charging decision that remain under review.” Third, disclosure of the
video recordings “could reveal the conditions and location of physical evidence, the
layout and documentation of the scene, and other investigative details compiled in
the course of the investigation.” Disclosure of the video recording could also “prejudice
witness testimony, influence recollections, and disclose evidentiary details and
investigative information relevant to the pending prosecutorial review.”

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.

Turning to the merits of the Department’s response on appeal, the Department
has explained that disclosure would prejudice witness testimony and reveal details
of evidence not currently known to the public. 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. Similarly, the Office has found that a KRS 61.878(1)(h) was
adequately invoked when it explained that disclosure could prejudice the memories
of potential witnesses. See 26-ORD-097. Accordingly, the Department has 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 pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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

Daryl Day, Appellant
Rich Storm, Kentucky Department of Fish and Wildlife, Commissioner
Gabe Jenkins, Kentucky Department of Fish and Wildlife, Deputy Commissioner
Melissa Trent, Kentucky Department of Fish and Wildlife, Director of Administrative
Services