CIVIL ACTION NO.

20-CI-__________ JEFFERSON CIRCUIT COURT

DIVISION __

THE COURIER-JOURNAL, INC. PLAINTIFF

v.

LOUISVILLE METRO POLICE DEPARTMENT DEFENDANT

Serve:

Mike O’Connell
Jefferson County Attorney
531 Court Place, Suite 900
Louisville, KY 40202

COMPLAINT

Plaintiff, The Courier-Journal, Inc., brings this lawsuit under the Open Records Act against

Louisville Metro Police Department (“LMPD”) to compel disclosure of public documents related

to LMPD’s now-completed investigation of the death of Breonna Taylor, who was shot and killed

in her own home by LMPD officers executing a “no-knock” warrant.

PARTIES, JURISDICTION, AND VENUE

1. The Courier-Journal, Inc. (the “Courier-Journal”) is a Delaware corporation with

its principal office address at 525 West Broadway, Louisville, Kentucky 40202.

2. Louisville Metro Police Department is a “[p]ublic agency” within the meaning of

KRS 61.870(1) and is located at 633 W. Jefferson Street, Louisville, Kentucky 40202.

3. This action is brought pursuant to KRS 61.882 to appeal LMPD’s denial of an open

records request submitted by Courier-Journal reporter Tessa Duvall and to obtain injunctive relief

requiring LMPD to disclose public records in violation of the Open Records Act.

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 4. Jurisdiction and venue are proper in this Court because LMPD’s principal place of

business is in Jefferson County, Kentucky and because the public records at issue in this action are

located here in Jefferson County, Kentucky.

FACTS

I. LMPD Officers Shoot Breonna Taylor While Executing No-Knock Warrant.

5. Shortly before 1:00 a.m. on March 13, 2020, three LMPD Officers broke down the

door of Breonna Taylor’s home.

6. After Ms. Taylor’s boyfriend, Kenneth Walker, fired a shot in apparent self defense

at what he considered to be a home invasion, the LMPD officers opened fire.

7. Ms. Taylor was struck by at least 8 bullets fired by LMPD officers and died at the

scene.

8. LMPD officers arrested Mr. Walker and charged him with various offenses,

including attempted murder of a police officer.

9. At the time of the shooting, LMPD was executing a no-knock search warrant for

Taylor’s residence in connection with a raid on a suspected drug house on Elliott Avenue, located

10 miles away from Ms. Taylor’s home.

10. Upon information and belief, the warrant application for Ms. Taylor’s home

suggested that a U.S. Postal Inspector informed LMPD that Jamarcus Glover – one of the targets

of the Elliott Avenue raid – received mail at Ms. Taylor’s residence. Subsequent reporting quoting

a U.S. Postal Inspector located in Louisville has suggested that his office did not inform LMPD

that Glover had been receiving mail at Taylor’s address, however. See, e.g., D. Costello, Breonna

Taylor attorneys: LMPD supplied ‘false information’ on ‘no-knock’ warrant, Courier-Journal.com

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(May 16, 2020). It further stated that the Postal Inspector, Tony Gooden, looked into the mater in

January 2020 and concluded there were no packages of interest going to Ms. Taylor’s house. Id.

11. In the wake of the public outcry over Ms. Taylor’s death, LMPD’s Public Integrity

Unit (“PIU”) conducted an investigation into what happened at Ms. Taylor’s home on March 13.

12. The Commonwealth Attorney has recused himself from deciding whether charges

should be brought against the LMPD officers involved in the shooting, however, turning that

decision over to the Kentucky Attorney General. See D. Costello, Top prosecutor recuses himself

in Breonna Taylor shooting, pursues case against boyfriend, Courier-Journal.com (May 13, 2020).

13. On May 20, 2020, Louisville Mayor Greg Fischer publicly announced that PIU had

completed its investigation and provided it to the Kentucky Attorney General, the Federal Bureau

of Investigation (“FBI”), and the United States Attorney for the Western District of Kentucky to

determine appropriate next steps. Mayor Fischer tweeted:

14. Upon information and belief, LMPD and its PIU will play no further role in

determining whether criminal charges will be brought against the LMPD officers involved in Ms.

Taylor’s death.

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 15. Two days after LMPD turned the PIU investigation over to the Attorney General,

Jefferson County Commonwealth Attorney Tom Wine held a press conference announcing the

dismissal of charges pending against Ms. Taylor’s boyfriend, Kenneth Walker. See D. Costello

and A. Wolfson, Prosecutor to dismiss charges against Breonna Taylor's boyfriend, wants more

investigation, Courier-Journal.com (May 22, 2020).

16. During that press conference, Mr. Wine publicly disclosed many aspects of the

investigation into Ms. Taylor’s death, including by playing recorded statements from Mr. Walker

and one of the officers involved (Jonathan Mattingly), as well as by disclosing a photograph that

reveals LMPD’s plans for executing the warrants on March 13. Id.

II. The Courier-Journal’s Open Records Request and Response from LMPD

17. Pursuant to Kentucky’s Open Records Act, KRS 61.870 et seq., LMPD is required

to disclose, upon request, the completed PIU investigation because it is not exempt from disclosure

under KRS 61.878(1).

18. On May 20, 2020, after Mayor Fischer publicly confirmed that LMPD had provided

the PIU investigation to the Attorney General, Courier Journal reporter Tessa Duvall submitted an

Open Records Request seeking “[a] copy of the Public Integrity Unit investigative file relating to

the March 13 shooting at 3003 Springfield/Breonna Taylor case that was provided to AG Daniel

Cameron, FBI and Up.S. Attorney.” See Exhibit 1.

19. The following day, LMPD responded with the very same boilerplate response that

it has used to deny many other requests seeking records related to Ms. Taylor’s death:

Your request is denied pursuant to KRS 61.878(1)(h) and 17.150(2) which state
that records of law enforcement agencies are exempt from disclosure through the
provisions of the Open Records Act until such time as prosecution is completed or
declined. Turning over the PIU investigation for the Breonna Taylor case is but one
step in the investigation, which remains open and ongoing. Prematurely releasing
records for an open and ongoing investigation in a public forum could result in

4
 prejudice to the potential witnesses and has the potential to adversely color a
witness’ recollection of the events. You may wish to resubmit your request after a
decision is rendered regarding prosecution and / or the PIU investigation is closed.

20. LMPD’s boilerplate response violated the Open Records law in numerous respects,

including that it (1) knowingly mischaracterizes the scope of the exemptions that it cited, which

are far narrower than LMPD suggests; (2) falsely implies that LMPD – the agency subject to this

request – is still investigating the matter when its role in the decision-making process has in fact

concluded; (3) relies on a blanket presumption that all records related to a pending investigation

may be withheld, contrary to binding Kentucky Supreme Court precedent; (4) fails to provide a

meaningful, non-boilerplate explanation of how release the records requested would harm an

ongoing investigation “in some specific and concrete way,” City of Fort Thomas v. Cincinnati

Enquirer, 406 S.W.3d 842, 856 (Ky. 2013); and (5) fails to disclose any non-exempt portions of

the requested records as required by KRS 61.878(4).

21. Following Mr. Wine’s press conference, Ms. Duvall sent a follow-up email to

LMPD asking them to disclose portions of the PIU report that relate to information that has now

been officially released in the public domain:

As you know, Commonwealth’s Attorney Tom Wine hosted a news conference this
afternoon, at which he disclosed a number of pieces of evidence to the public,
including at least three audio clips from Kenneth Walker’s statements, one audio
clip from Sgt. Jonathan Mattingly and a photo of the whiteboard that shows
LMPD’s plan for the warrants executed on the night of March 13.

Considering all of this was shared publicly, I am now asking that LMPD reconsider
this denial and in turn release any parts of the investigative report, or supporting
materials, that were addressed today.

See Exhibit 2.

22. To date, LMPD has not acknowledged or responded to Ms. Duvall’s email.

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 COUNT I – VIOLATION OF OPEN RECORDS ACT

23. The Courier-Journal hereby incorporates and restates the allegations set forth in

paragraphs 1 through 22 of this Complaint.

24. Under Kentucky law, the Courier-Journal is entitled to disclosure of the PIU

investigation, in the form it was transmitted to the Attorney General, FBI, and US Attorney, under

the Open Records Act as there is no applicable statutory exemption. KRS 61.870 et seq.

25. LMPD willfully violated the Open Records Act by refusing to disclose records

responsive to the Courier-Journal’s request by (1) citing inapplicable exemptions; (2) failing to

acknowledge or follow binding Kentucky Supreme Court precedent; (3) failing to offer any

meaningful explanation of how the disclosure of the document could cause harm to an ongoing

investigation in some “significant and concrete way”; and (4) failing to disclose any non-exempt

portions of the records requested.

26. Pursuant to KRS 61.882(2), the Courier-Journal is entitled to seek injunctive and

other relief from LMPD’s actions with respect to its Open Records requests directly from this

Court without first seeking relief from the Attorney General under KRS 61.880.

27. Pursuant to KRS 61.882(4), this action should take precedence on this Court’s

docket over all other causes and should be assigned for hearing or trial at the earliest practicable

date.

28. Pursuant to KRS 61.882(5), the Courier-Journal is entitled to recover its costs,

reasonable attorneys’ fees from this lawsuit, and statutory penalties because the LMPD has

willfully withheld the requested records in violation of the Open Records Act.

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WHEREFORE, the Courier-Journal respectfully requests the following relief:

1. An expedited briefing schedule and hearing on this matter at the earliest practicable
date;

2. An injunction ordering defendant to disclose the requested records;

3. An award to the Courier-Journal of its costs, including reasonable attorneys’ fees,

in connection with this matter pursuant to KRS 61.882(5);

4. An award to the Courier-Journal of statutory penalties pursuant to KRS 61.882(5);

and

5. All other relief to which the Courier-Journal may be entitled.

Respectfully submitted,

s/ Jon L. Fleischaker
Jon L. Fleischaker
Michael P. Abate
Andrea N. Aikin
KAPLAN JOHNSON ABATE & BIRD LLP
710 West Main Street, 4th Floor
Louisville, Kentucky 40202
Tel: (502) 416-1630
Fax: (502) 540-8282
jfleischaker@kplouisville.com
mabate@kplouisville.com
aaikin@kplouisville.com

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EXHIBIT 1

8
Duvall, Tessa

From: Smiley, Alicia <Alicia.Smiley@louisvilleky.gov>

Sent: Thursday, May 21, 2020 11:42 AM
To: Duvall, Tessa; LMPD PIO
Subject: RE: ORR #13115 Tessa Duvall - LMPD Other 05/20/2020

Your request is denied pursuant to KRS 61.8781)(h) and 17.150(2) which state that records of law enforcement agencies
are exempt from disclosure through the provisions of the Open Records Act until such time as prosecution is completed
or declined. Turning over the PIU investigation for the Breonna Taylor case is but one step in the investigation, which
remains open and ongoing. Prematurely releasing records for an open and ongoing investigation in a public forum could
result in prejudice to the potential witnesses and has the potential to adversely color a witness’ recollection of the
events. You may wish to resubmit your request after a decision is rendered regarding prosecution and / or the PIU
investigation is closed.

From: Open Records Requests - LMPD <no-reply@wufoo.com>

Sent: Wednesday, May 20, 2020 3:37 PM
To: Open Records <openrecords2@louisvilleky.gov>; LMPD PIO <lmpdpio@louisvilleky.gov>
Cc: openrecords-media <openrecordsmedia@louisvilleky.gov>
Subject: ORR #13115 Tessa Duvall - LMPD Other 05/20/2020

Requestor Name * Tessa Duvall

Is the requestor a law firm? * No

Business/Organization Name (If Applicable) Courier Journal

Are you a media organization? * Yes

Requestor Address *
525 W. Broadway
Louisville, KY 40202
United States

Requestor Email tduvall@gannett.com

Requestor Phone Number (502) 582-4059

Which Metro Government LMPD

Agency or Agencies
Do You Think Holds the Record(s)?

Specific Type of Record * Other

1
 Will the Record be used for No
Commercial Purposes? *

Preference on Review of Records? * PDF files on Email (if systems allow)

Name of Police Officer(s) Associated with the B. Hankison, M. Cosgrove, J. Mattingly

Report or Incident:

Describe the specific record or records you wish A copy of the Public Integrity Unit investigative file relating to the March 13
to examine here or submit attachment with shooting at 3003 Springfield/Breonna Taylor case that was provided to AG
record description below: * Daniel Cameron, FBI and U.S. Attorney.

The information contained in this communication from the sender is confidential. It is intended solely for use by the
recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure,
copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be
unlawful.

2
EXHIBIT 2

9
Duvall, Tessa

From: Duvall, Tessa

Sent: Friday, May 22, 2020 3:53 PM
To: Smiley, Alicia; LMPD PIO
Cc: Halladay, Jessie
Subject: RE: ORR #13115 Tessa Duvall - LMPD Other 05/20/2020

Alicia,

As you know, Commonwealth’s Attorney Tom Wine hosted a news conference this afternoon, at which he disclosed a
number of pieces of evidence to the public, including at least three audio clips from Kenneth Walker’s statements, one
audio clip from Sgt. Jonathan Mattingly and a photo of the whiteboard that shows LMPD’s plan for the warrants
executed on the night of March 13.

Considering all of this was shared publicly, I am now asking that LMPD reconsider this denial and in turn release any
parts of the investigative report, or supporting materials, that were addressed today.

Tessa

Tessa Duvall
Investigative and enterprise reporter

PART OF THE USA TODAY NETWORK

Mobile: 502.548.8872
Office: 502.582.4059
Twitter: @TessaDuvall
tduvall@courier-journal.com
Pronouns: she/her
courierjournal.com

From: Smiley, Alicia <Alicia.Smiley@louisvilleky.gov>

Sent: Thursday, May 21, 2020 11:42 AM
To: Duvall, Tessa <TDuvall@gannett.com>; LMPD PIO <lmpdpio@louisvilleky.gov>
Subject: RE: ORR #13115 Tessa Duvall - LMPD Other 05/20/2020

Your request is denied pursuant to KRS 61.8781)(h) and 17.150(2) which state that records of law enforcement agencies
are exempt from disclosure through the provisions of the Open Records Act until such time as prosecution is completed
or declined. Turning over the PIU investigation for the Breonna Taylor case is but one step in the investigation, which
remains open and ongoing. Prematurely releasing records for an open and ongoing investigation in a public forum could
result in prejudice to the potential witnesses and has the potential to adversely color a witness’ recollection of the

1
events. You may wish to resubmit your request after a decision is rendered regarding prosecution and / or the PIU
investigation is closed.

From: Open Records Requests - LMPD <no-reply@wufoo.com>

Sent: Wednesday, May 20, 2020 3:37 PM
To: Open Records <openrecords2@louisvilleky.gov>; LMPD PIO <lmpdpio@louisvilleky.gov>
Cc: openrecords-media <openrecordsmedia@louisvilleky.gov>
Subject: ORR #13115 Tessa Duvall - LMPD Other 05/20/2020

Requestor Name * Tessa Duvall

Is the requestor a law firm? * No

Business/Organization Name (If Applicable) Courier Journal

Are you a media organization? * Yes

Requestor Address *
525 W. Broadway
Louisville, KY 40202
United States

Requestor Email tduvall@gannett.com

Requestor Phone Number (502) 582-4059

Which Metro Government LMPD

Agency or Agencies
Do You Think Holds the Record(s)?

Specific Type of Record * Other

Will the Record be used for No

Commercial Purposes? *

Preference on Review of Records? * PDF files on Email (if systems allow)

Name of Police Officer(s) Associated with the B. Hankison, M. Cosgrove, J. Mattingly

Report or Incident:

Describe the specific record or records you wish A copy of the Public Integrity Unit investigative file relating to the March 13
to examine here or submit attachment with shooting at 3003 Springfield/Breonna Taylor case that was provided to AG
record description below: * Daniel Cameron, FBI and U.S. Attorney.

The information contained in this communication from the sender is confidential. It is intended solely for use by the
recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure,