What would Kentucky do?

Attorneys for New England Patriots owner, Robert Kraft, have asked a Florida court to suppress video evidence obtained in an investigation that resulted in solicitation charges against Kraft and 300 other men. They maintain that "'there's no need for [the video] to be released' for the public to understand what Kraft allegedly did."

It's their position that Kraft's privacy rights trump Florida's sunshine laws and that disclosure of the video compromises his right to a fair trial.

Media attorneys have asserted the public interest in a redacted copy of the video which Kraft's attorneys describe as "basically pornography."

It is not clear how the issue will be resolved under Florida law.

If this issue was presented to a Kentucky court, the court would likely weigh Kraft's privacy interest in a video -- disclosure of which would no doubt prove embarrassing to Kraft -- against the competing public interest in knowing how law enforcement officials discharged their duties. Was Kraft given preferential treatment? Or were officials overzealous in his case? Does the video offer any insight into whether officials fully and fairly discharged their duty.

If so, a court might conclude that the public's interest is superior to Kraft's privacy interest and reject his attorneys' argument.

A Kentucky court would also consider the law enforcement exception to the open records law and whether premature release of the records would harm the agency, or the prosecution of the case, "in some articulable way." In City of Ft. Thomas v. Cincinnati Enquirer, the Kentucky Supreme Court held that the law enforcement exemption is appropriately invoked "only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern."

In general, the bare statement that disclosure of the video would jeopardize Kraft's right to a fair trial would not satisfy this requirement. The same could be argued about any piece of evidence in any criminal case.

Unless Kraft's attorneys could articulate concrete harm that would result from disclosure of the video, Kentucky's courts might also reject their attempt to deny the public access under the law enforcement exception.

This will be an interesting test of Florida's highly regarded sunshine laws.