Lexington police wrongly withheld records in one case but followed law in another, AG ruling says
The Lexington Police Department wrongly withheld some records relating to a man acquitted in a recent court case, according to a recent attorney general’s opinion.
In a separate opinion also released Monday, Kentucky Attorney General Daniel Cameron’s office said LPD was correct to withhold a video of a driving under the influence traffic stop that did not involve the client of the person who requested the video.
In the first opinion, Joshua Powell, an investigator with the Department of Public Advocacy, requested under the state’s Open Records Act all documents where LPD employees discussed his client and his client’s recent trial.
In its response, Lexington police said did not possess any documents relating to his client or the client’s trial but said there were documents related to previous contact the department had with Powell’s client.
The department withheld those documents.
Under the state’s Open Records Act, the department must cite specific exemptions under the law on why those records can be withheld.
The department failed to provide those exemptions, the ruling found.
One exemption allows police to withhold information if a criminal prosecution is ongoing. Powell’s client had been acquitted and there was no pending criminal investigation, the ruling said.
The department provided the attorney general’s office the documents it withheld. One of those documents involved a summary of a domestic violence incident involving Powell’s client.
The client wasn’t charged and the department failed to prove it was part of an active investigation, the ruling found.
Lexington police were correct to withhold some records involving a suspect fleeing from a scene, the decision said.
“The other category of records do appear related to a separate ‘prospective law enforcement action’ regarding a vehicle fleeing the scene of an accident,” the decision said. “The records indicate that a decision to prosecute that crime has not yet been made.”
The department was also allowed to withhold internal communications between police agencies regarding a social media account. A decision not to prosecute had not yet been made, the attorney general’s office ruled.
Officials with the Department of Public Advocacy, which represents clients who cannot afford a lawyer, were not immediately available for comment. It’s not clear if DPA will appeal the attorney general’s opinion on those records the office deemed were properly withheld.
DUI videos
In a separate opinion released Monday, the attorney general’s office said the city had the right to withhold a video of a DUI stop which involved a witness who could have testified against Powell’s client.
The client is not named. It’s unclear if the client is the same client involved in the other attorney general decision released Monday.
In that decision, Powell asked for police body-worn camera footage of a field sobriety test. Powell’s client is the not the subject of the DUI test, the ruling noted.
State law says DUI footage can only be shown or viewed for three reasons: In court, preparation by defense or prosecutors for court, or an administrative review by the police department. Police sometimes review body-worn camera footage of police officers to ensure they are following procedures or if there is a complaint about an officer’s conduct.
In the ruling, lawyers for the attorney general’s office said preparation for court by defense and prosecutors should only be construed as lawyers that were parties to the the DUI proceeding — the client’s defense attorney or the prosecutor.
“The statute does not allow some other defendant in an unrelated criminal proceeding to use the video for his defense,” the ruling said.
Powell said the information was sought because the person in the DUI video was someone who could testify against his client.
