What is this, you may ask?
This is a very bad House Floor Amendment to a very good House Committee Substitute to a very foolish and unnecessary bill creating a new exception to the open records law that ignores the foundational principle on which the law is based.
"Free and open examination of public records is in the public interest."
In those cases where the public interest in free and open examination of records is outweighed by a strongly substantiated need for governmental confidentiality or personal privacy, the public interest yields to those interests.
HB 174, sponsored by Rep. Chris Freeland, R-Benton, preempts this "balancing of interests" analysis that has existed in the law for 28 years. The bill categorically excludes from public inspection "photographs or videos that depict a person's death, killing, rape, or sexual assault or abuse."
No matter if a strongly substantiated public interest supporting disclosure exists; no matter if surviving victims or surviving family members waive their privacy interests; no matter if there are no surviving victims or family members whose privacy interests must be considered; the photos and videos are excluded from public inspection. Absolutely and without exception.
So much for "free and open examination of public records."
We have written about HB 174 on several occasions.
https://www.facebook.com/1846598708/posts/10212814162869342/?d=n
The single redeeming feature of HB 174, a House Committee Substitute aimed at correcting an ambiguity in 2019's SB 230—sponsored by Sen. Wil Schroder, R-Wilder—is now off the table.
That sub firmly established the right to submit open records requests to public agencies by email (in addition to U.S. Mail, hand-delivery, or fax). It was adopted in committee on February 13.
Sometime between February 13 and February 26, Rep. Freeland had second thoughts. Why mar an otherwise terrible bill with a pesky Committee Substitute designed to eliminate confusion and bring Kentucky into the 21st Century.
Freeland's February 26 House Floor Amendment deleted the Committee Sub that secured that goal.
Congratulations to all the leagues and associations which insisted that 2019 SB 230 was actually intended to *limit* requesters' options and who threatened that they would not support a bill that—horror of horrors—required their member agencies to accept emailed open records requests.
You win! The public loses.
But let's return to HB 174 in its original form, and why I cannot be "neutral" on it.
As an assistant attorney general, I reviewed an appeal involving the denial of a freelance reporter's request for unaltered copies of photos of a census worker found dead by hanging in the Daniel Boone National Park. The census worker carved the word "FED" on his chest in order to create the appearance of a hate crime then committed suicide.
The law enforcement agency to which the request was addressed altered the photos to make them illegible. Based on a strongly substantiated public interest in disclosure, the attorney general determined that the agency violated the open records law.
https://ag.ky.gov/Priorities/Government-Transparency/orom/2013/13ORD023…
And there are other examples.
https://ag.ky.gov/Priorities/Government-Transparency/orom/2010/10ORD123…
But I also reviewed open records appeals involving agency denial of access to crime scene photos that implicated privacy interests of traumatized victims or traumatized surviving family members that were superior to the public's interest in disclosure. In those appeals, the attorney general found no violation of the open records law.
https://ag.ky.gov/Priorities/Government-Transparency/orom/2000/00ORD162…
https://ag.ky.gov/Priorities/Government-Transparency/orom/2005/05ORD075…
https://ag.ky.gov/Priorities/Government-Transparency/orom/2015/15ORD197…
HB 174 authorizes blanket nondisclosure.
As HB 174 speeds toward passage in the Senate, we should consider what we are witnessing.
In addition to the blind refusal to correct a drafting error from 2019 that would codify the right to submit requests by email, we are witnessing the steady erosion of the public interest by those who refuse to acknowledge that our law already affords adequate protection to government and the people it serves.
We stand to lose a lot, and very soon a lot more.
