CHAPTER 168
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CHAPTER 168
( HB 207 )
AN ACT relating to internal police communications.
Be it enacted by the General Assembly of the Commonwealth of Kentucky:
SECTION 1. A NEW SECTION OF KRS CHAPTER 15 IS CREATED TO READ AS FOLLOWS:
(1) As used in this section:
(a) "Wellness program" means a program created by a law enforcement agency to support the physical
and mental health of law enforcement personnel; and
(b) "Early intervention system" means a methodology that identifies and addresses potentially
problematic behaviors.
(2) A law enforcement agency may create its own wellness program in order to support the mental health and
wellbeing of its employees. These programs may include but are not limited to an early intervention system,
access to mental health counseling, crisis counseling, support systems, training, equipment, and technology
necessary for an employee to perform his or her job.
(3) Any law enforcement agency that creates its own wellness program shall establish written policies and
procedures for the program.
(4) (a) Except as provided in paragraph (b) of this subsection, all proceedings, records, opinions,
conclusions, and recommendations arising from any aspect of a wellness program shall be
confidential and privileged from disclosure, regardless of who possesses them. Under this
confidentiality and privilege, the wellness program records or communications shall be subject to the
same protections as any counselor-client privilege provided under the Kentucky Rules of Evidence in
any criminal or civil proceeding. The participating officer or telecommunicator shall be the holder of
the privilege.
(b) This privilege shall not apply:
1. To the disclosure of relevant information in response to a claim made by the holder of the
privilege against a law enforcement agency related to programs or services provided by a
wellness program under this section; or
2. When an officer's or telecommunicator's communication contains:
a. An explicit threat of suicide in which the participant shares an intent to die by suicide, a
plan to carry out a suicide attempt by the participant, or a disclosure of the means by
which the participant intends to carry out a suicide attempt. This paragraph shall not
apply to any wellness program communication where the officer or telecommunicator
solely shares that the participant is experiencing suicidal thoughts;
b. An explicit threat by a participant of imminent and serious physical injury and bodily
harm or death to a clearly identified or reasonably identifiable victim;
c. Information related to the abuse or neglect of a child or an older adult or vulnerable
individual that is required by law to be reported;
d. An admission of criminal conduct; or
e. Other information which is required by law to be disclosed.
(c) Nothing in this subsection shall be construed to restrict or limit the right to discover or use in any
civil action any evidence, document, or record that is subject to discovery independently of the
proceedings of the wellness program.
(d) A law enforcement agency may use anonymous data for research, statistical analysis, and
educational purposes.
Section 2. KRS 61.878 is amended to read as follows: ACTS OF THE GENERAL ASSEMBLY 2
(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject
to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the
inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the
Rules of Civil Procedure governing pretrial discovery:
(a) Public records containing information of a personal nature where the public disclosure thereof would
constitute a clearly unwarranted invasion of personal privacy;
(b) Records confidentially disclosed to an agency and compiled and maintained for scientific research. This
exemption shall not, however, apply to records the disclosure or publication of which is directed by
another statute;
(c) 1. Records confidentially disclosed to an agency or required by an agency to be disclosed to it,
generally recognized as confidential or proprietary, which if openly disclosed would permit an
unfair commercial advantage to competitors of the entity that disclosed the records;
2. Records confidentially disclosed to an agency or required by an agency to be disclosed to it,
generally recognized as confidential or proprietary, which are compiled and maintained:
a. In conjunction with an application for or the administration of a loan or grant;
b. In conjunction with an application for or the administration of assessments, incentives,
inducements, and tax credits as described in KRS Chapter 154;
c. In conjunction with the regulation of commercial enterprise, including mineral exploration
records, unpatented, secret commercially valuable plans, appliances, formulae, or
processes, which are used for the making, preparing, compounding, treating, or processing
of articles or materials which are trade commodities obtained from a person; or
d. For the grant or review of a license to do business.
3. The exemptions provided for in subparagraphs 1. and 2. of this paragraph shall not apply to
records the disclosure or publication of which is directed by another statute;
(d) Public records pertaining to a prospective location of a business or industry where no previous public
disclosure has been made of the business' or industry's interest in locating in, relocating within or
expanding within the Commonwealth. This exemption shall not include those records pertaining to
application to agencies for permits or licenses necessary to do business or to expand business operations
within the state, except as provided in paragraph (c) of this subsection;
(e) Public records which are developed by an agency in conjunction with the regulation or supervision of
financial institutions, including but not limited to banks, savings and loan associations, and credit
unions, which disclose the agency's internal examining or audit criteria and related analytical methods;
(f) The contents of real estate appraisals, engineering or feasibility estimates and evaluations made by or
for a public agency relative to acquisition of property, until such time as all of the property has been
acquired. The law of eminent domain shall not be affected by this provision;
(g) Test questions, scoring keys, and other examination data used to administer a licensing examination,
examination for employment, or academic examination before the exam is given or if it is to be given
again;
(h) Records 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 would harm the agency by revealing the identity of informants not otherwise known
or by premature release of information to be used in a prospective law enforcement action or
administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public
records exempted under this provision shall be open after enforcement action is completed or a decision
is made to take no action; however, 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 provisions of KRS 61.870 to 61.884 and shall remain exempted after
enforcement action, including litigation, is completed or a decision is made to take no action. The
exemptions provided by this subsection shall not be used by the custodian of the records to delay or
impede the exercise of rights granted by KRS 61.870 to 61.884; CHAPTER 168
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(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is
intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies
formulated or recommended;
(k) All public records or information the disclosure of which is prohibited by federal law or regulation or
state law;
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made
confidential by enactment of the General Assembly, including any information acquired by the
Department of Revenue in tax administration that is prohibited from divulgence or disclosure under
KRS 131.190;
(m) 1. Public records the disclosure of which would have a reasonable likelihood of threatening the
public safety by exposing a vulnerability in preventing, protecting against, mitigating, or
responding to a terrorist act and limited to:
a. Criticality lists resulting from consequence assessments;
b. Vulnerability assessments;
c. Antiterrorism protective measures and plans;
d. Counterterrorism measures and plans;
e. Security and response needs assessments;
f. Infrastructure records that expose a vulnerability referred to in this subparagraph through
the disclosure of the location, configuration, or security of critical systems, including
public utility critical systems. These critical systems shall include but not be limited to
information technology, communication, electrical, fire suppression, ventilation, water,
wastewater, sewage, and gas systems;
g. The following records when their disclosure will expose a vulnerability referred to in this
subparagraph: detailed drawings, schematics, maps, or specifications of structural
elements, floor plans, and operating, utility, or security systems of any building or facility
owned, occupied, leased, or maintained by a public agency; and
h. Records when their disclosure will expose a vulnerability referred to in this subparagraph
and that describe the exact physical location of hazardous chemical, radiological, or
biological materials.
2. As used in this paragraph, "terrorist act" means a criminal act intended to:
a. Intimidate or coerce a public agency or all or part of the civilian population;
b. Disrupt a system identified in subparagraph 1.f. of this paragraph; or
c. Cause massive destruction to a building or facility owned, occupied, leased, or maintained
by a public agency.
3. On the same day that a public agency denies a request to inspect a public record for a reason
identified in this paragraph, that public agency shall forward a copy of the written denial of the
request, referred to in KRS 61.880(1), to the executive director of the Kentucky Office of
Homeland Security and the Attorney General.
4. Nothing in this paragraph shall affect the obligations of a public agency with respect to
disclosure and availability of public records under state environmental, health, and safety
programs.
5. The exemption established in this paragraph shall not apply when a member of the Kentucky
General Assembly seeks to inspect a public record identified in this paragraph under the Open
Records Law;
(n) Public or private records, including books, papers, maps, photographs, cards, tapes, discs, diskettes,
recordings, software, or other documentation regardless of physical form or characteristics, having
historic, literary, artistic, or commemorative value accepted by the archivist of a public university, ACTS OF THE GENERAL ASSEMBLY 4
museum, or government depository from a donor or depositor other than a public agency. This
exemption shall apply to the extent that nondisclosure is requested in writing by the donor or depositor
of such records, but shall not apply to records the disclosure or publication of which is mandated by
another statute or by federal law;
(o) Records of a procurement process under KRS Chapter 45A or 56. This exemption shall not apply after:
1. A contract is awarded; or
2. The procurement process is canceled without award of a contract and there is a determination
that the contract will not be resolicited;
(p) Client and case files maintained by the Department of Public Advocacy or any person or entity
contracting with the Department of Public Advocacy for the provision of legal representation under
KRS Chapter 31;
(q) Except as provided in KRS 61.168, photographs or videos that depict the death, killing, rape, or sexual
assault of a person. However, such photographs or videos shall be made available by the public agency
to the requesting party for viewing on the premises of the public agency, or a mutually agreed upon
location, at the request of;
1. a. Any victim depicted in the photographs or videos, his or her immediate family, or legal
representative;
b. Any involved insurance company or its representative; or
c. The legal representative of any involved party;
2. Any state agency or political subdivision investigating official misconduct; or
3. A legal representative for a person under investigation for, charged with, pled guilty to, or found
guilty of a crime related to the underlying incident. The person under investigation for, charged
with, pled guilty to, or found guilty of a crime related to the underlying incident or their
immediate family shall not be permitted to have access to the photographs or videos;
(r) Records confidentially maintained by a law enforcement agency in accordance with a wellness
program, including an early intervention system, as described in Section 1 of this Act; and
(s)[(r)] Communications of a purely personal nature unrelated to any governmental function.
(2) No exemption in this section shall be construed to prohibit disclosure of statistical information not descriptive
of any readily identifiable person.
(3) No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency
employee, including university employees, an applicant for employment, or an eligible on a register to inspect
and to copy any record including preliminary and other supporting documentation that relates to him or her.
The records shall include[,] but not be limited to[,] work plans, job performance, demotions, evaluations,
promotions, compensation, classification, reallocation, transfers, lay-offs, disciplinary actions, examination
scores, and preliminary and other supporting documentation. A public agency employee, including university
employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any
documents relating to ongoing criminal or administrative investigations by an agency.
(4) If any public record contains material which is not excepted under this section, the public agency shall separate
the excepted and make the nonexcepted material available for examination.
(5) The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of
information between public agencies when the exchange is serving a legitimate governmental need or is
necessary in the performance of a legitimate government function.
(6) When material is made available pursuant to a request under subsection (1)(q) of this section, the public
agency shall not be required to make a copy of the recording except as provided in KRS 61.169, and the
requesting parties shall not be limited in the number of times they may view the material.
Signed by Governor April 4, 2023.