The House State Government Committee heard testimony on February 13 on a new exception to the open records law sponsored by "Representative Chris Freeland, R-Benton.
If enacted, HB 174 will establish an exception to the law for "photographs or videos that depict the death, killing, rape, or physical or sexual assault or abuse of a person."
https://apps.legislature.ky.gov/record/20rs/HB174.html
The bill was voted out of committee with a committee substitute.
The substitute contains language aimed at reconciling the proposed exception with existing law governing access to body worn camera video.
In addition, it establishes the right of "any party who was involved in the underlying incident, including the party, his or her immediate family, legal representative, or any involved insurance company or their representative" to obtain a copy of the otherwise protected photograph or video.
More importantly, the substitute eliminates controversial language that appeared in the pre-filed bill authorizing nondisclosure of "gruesome" photographs or videos.
Nevertheless, opponents predict that the bill will "likely face immediate challenge over its constitutionality [insofar as] it runs afoul of the separation of powers and the 1st Amendment right of access to court proceedings."
Twice the Coalition objected to the vagueness of the standard of gruesomeness and the potential for abuse this subjective standard created.
https://www.facebook.com/419650175248377/posts/578076369405756/?d=n
https://www.facebook.com/419650175248377/posts/591841984695861/?d=n
Twice we attempted to suggest that the proposed exception is, in fact, redundant.
The personal privacy exception, we argued, authorizes public agencies to withhold "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
"Judging by order, if nothing more," Kentucky's Supreme Court has observed, "one might say that (1)(a) [the privacy exception] is the foremost exception to the disclosure rule. Certainly it is an independently viable exception, not subordinate to any other.
"The language of subsection (1)(a) reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny."
https://law.justia.com/cases/kentucky/supreme-court/1992/90-sc-498-dg-1…
The privacy exception is successfully invoked in cases where the public's interest in disclosure of a record is outweighed by the privacy interests implicated by the record's disclosure. In such cases, disclosure is said to constitute "a clearly unwarranted invasion of personal privacy."
It is a standard that requires, in most instances, a fact specific analysis.
And it satisfies the need to protect personal privacy in cases involving photographs or videos depicting "death, killing, rape, or physical or sexual assault or abuse of a person" where there is a strongly substantiated privacy interests and a minimal public interest in disclosure.
As the Supreme Court observed, "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity."
https://law.justia.com/cases/kentucky/supreme-court/1992/90-sc-498-dg-1…
The introduction of a new exception for such photographs and video offers no greater protection than currently exists. Contrary to the proponents' beliefs, the open records law will continue to allow an avenue for applicants to obtain and publish disturbing crime scene photos and video, "reopening old wounds for those affected." This is because the exceptions to the open records law are permissive rather than mandatory.
https://caselaw.findlaw.com/ky-supreme-court/1653243.html
It is incumbent on a public agency in all cases involving access to public records to exercise sound judgment and to "scrupulously perform its duty to ensure that any privileged materials are not provided [in response to] an open records request."
Erecting additional, largely redundant, exceptions offers no greater guarantees.
The concerns expressed by Rep. Freeland and the parents of the victims of the 2018 Marshall County High School shootings are legitimate. But the exception they propose does not erect a firewall, or otherwise achieve their desired ends, to any greater degree than existing privacy protection.
On a positive note, the HB 174 Committee Substitute eliminates ambiguous language in 2019's SB 230.
https://apps.legislature.ky.gov/record/19rs/SB230.html
That bill, sponsored by Senator Wil Schroder, R-Wilder, was intended to at long last recognize the use of email to transmit open records requests.
The well-intentioned but poorly worded amendment prompted some officials to argue that the new law narrowed, rather than expanded, the range of available options for transmitting records requests.
The Committee Substitute to HB 174 reads as follows:
"Any person shall have the right to inspect public records. The official custodian may require a written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. *The written application shall be hand delivered, mailed, e-mailed, or sent via facsimile to the public agency*."
Subsequent conflicting references to facsimile and email transmission of the request are removed.
With the Committee Substitute to HB 174 we eliminate one open government challenge but create a new one.
