The first of what may be multiple bills aimed at introducing new exceptions to the open records and meetings laws in the 2020 Regular Session of the Kentucky General Assembly was pre-filed on December 13.
BR 965, sponsored by Rep. Chris Freeland (R-Benton), would establish a new exception to the open records law for "Photographs and videos prepared, owned, used, possessed, or retained by public agencies that depict a person's death, killing, rape, or physical or sexual assault or abuse, as well as any other gruesome photograph or video of a person."
The bill includes "gruesome photographs or videos introduced as part of a civil or criminal proceeding" and is expressly made retroactive "to gruesome photographs or videos in existence prior to the effective date of this Act."
The bill overlaps with existing law relating to body-worn cameras and video and audio recordings, enacted in 2018, which affords public agencies the option, under most circumstances, to withhold recordings that "include the body of a deceased individual" or are "of a sexual nature or video footage that contains nude images. . . ."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=47987
But it also extends to photos and videos "used, possessed, or retained," but not necessarily created, by public agencies.
Some will argue that the bill is unnecessary because such photos and videos regularly appear on the internet and that the public is de-sensitized to them. Be that as it may, Kentucky's courts have recognized that, "information is no less private simply because that information is available someplace. We deal . . . not in total nondisclosure, but with an individual's interest in selective disclosure."
https://law.justia.com/cases/kentucky/court-of-appeals/1994/93-ca-00185…
But the use of the vague and subjective "know it when I see it" catch-all phrase "any other gruesome photograph or video of a person" will invite inconsistent application and enforcement and result in legal challenges.
This is unfortunate since existing law is sufficient.
Through the years, the privacy exception to the open records law has adequately addressed the intrusions on personal privacy Rep. Freeland apparently wishes to avoid. KRS 61.878(1)(a) authorizes nondisclosure of public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=49156
Relying on federal caselaw, the attorney general has recognized in several open records decisions involving crime scene photos/videos that although a person's privacy rights expire at the time of death, the privacy rights of surviving family members in the avoidance of "re-traumatization" resulting from release of such photos may outweigh the public's interest in disclosure.
https://ag.ky.gov/orom/2005/05ORD075.doc
https://ag.ky.gov/orom/2015/15ORD197.doc
https://www.law.cornell.edu/supct/html/02-954.ZO.html
The courts and the attorney general have also accorded victims of sexual offenses privacy protection commensurate with this "ultimate violation of self." Again, Kentucky found support for this position in federal caselaw.
https://ag.ky.gov/orom/2002/02ORD036.doc
https://caselaw.findlaw.com/ky-court-of-appeals/1244250.html
Thus, it seems that we are once again confronted with a legislative solution looking for a problem.
