As expected, the Franklin County Regional Jail has denied The State Journal's open records request for video documenting the death of jail inmate Paul Baughman.

Baughman died in the jail at the age of 69 on Aug. 25. Jail officials suspect that he died of natural causes, but autopsy results confirming their suspicions will not be available for several weeks.

In denying The State Journal's request, the jail relied on a newly enacted exception to the open records law authorizing nondisclosure of "photographs or videos that depict the death, killing, rape, or sexual assault of a person."

The Kentucky Open Government Coalition opposed the new exception during the 2021 legislative session. We asserted that the existing privacy exception to the open records law adequately shields from public disclosure photos and videos of death, killing, rape, or sexual assault that reveal nothing about a public agency's or employee's discharge of statutory duties.

https://apps.legislature.ky.gov/record/21rs/hb273.html

Only in those instances — such as the death of George Floyd or David McAtee — where bystander or surveillance video depicts public agency or employee involvement will those privacy interests yield to the public's right to know. By way of example, we pointed to jail surveillance video depicting a sexual assault or a suspicious death such as the death of Jeffrey Epstein.

The sponsor of the new exception stated that his bill was intended to protect the privacy of the surviving victim or victim's family. It was prompted by concerns about the adverse impact on victims' family of release of photos and videos of the 2018 Marshall County High School shootings.

Ironically, the deceased inmate in this case is described as a man with virtually no family. Under the common law, his privacy rights ended at the time of his death. Given these circumstances, the exception(s) could be waived and the video released to confirm jail officials' belief that he died of natural causes.

The exceptions to the open records law "are a shield and not a shackle." They can be, and occasionally are, waived where their underlying purpose is not served.

In weighing the public interest in the unexplained death of a jail inmate against the nonexistent privacy interest of the decedent and the unsubstantiated privacy interest of his few surviving family members, the balance tips in favor of waiving the exception and releasing the video.

Chances are the exception will not be waived and we will remain in the dark until autopsy results are available. Even the autopsy will leave some questions unanswered that the video might well answer.