Yesterday, the Dallas Morning News released body cam video of the death of Tony Timpa while under police restraint. It ignited a firestorm of criticism as well as accusations of a police and judicial cover-up.

In August 2016, Timpa — who suffered from mental illness and had ingested cocaine — called 911 to request assistance. After placing Timpa in what is described as a controversial and dangerous form of physical restraint, three Dallas police officers stood by and mocked him in his final moments. They failed to render aid as he lay, apparently lifeless, for 13 minutes.

The three officers were subsequently placed on paid administrative leave and disciplined for "conduct discrediting" the Dallas Police Department. Two of the officers received written reprimands for "discourtesy" and "unprofessionalism." They were indicted by a grand jury in 2017 but returned to active duty in April 2019 after the Dallas County District Attorney dropped all criminal charges.

The video — which was placed under protective order in the resulting federal action for use of excessive force by Timpa's mother — is deeply disturbing as is the notion that a law enforcement agency, arguably aided by the judicial system, attempted to cover up the officers' misconduct and insulate them accountability.

The report that accompanies the video indicates that "The News obtained Dallas Police Department body camera footage after a three year fight for records related to Timpa's death. A federal judge ruled Monday in favor of a motion by The News and NBC5 to release records from his death, saying 'the public has a compelling interest in understanding what truly took place during a fatal exchange between a citizen and law enforcement.'"

The News's three year legal battle to obtain the video ended because the criminal charges against the officers were dismissed and the protective order was lifted.

Knowing that Kentucky enacted a law governing access to body cam video in 2018, and that the new law has not yet been legally tested, the Coalition reached out to Dallas Morning News reporter Cary Aspinwall and Freedom of Information Foundation of Texas Executive Director Kelley Shannon for "the rest of the story."

Cary explained the background of the federal case Tony Timba's mother filed and furnished us with copies of the court's order. She expanded on The News's role in securing release of the video. Kelley furnished us with a copy of the lengthy statute in which the body cam video laws are buried. She described the challenges the public has faced in accessing videos under the law.

https://statutes.capitol.texas.gov/Docs/OC/htm/OC.1701.htm

In Texas, access to body cam video is not governed by the state's public records law, but by the state's "Occupation Code," specifically the chapter dealing with Law Enforcement Officers. Nevertheless, law enforcement agencies rely on various loopholes in the public records law to withhold video.

Kentucky's 2018 law clearly states that "the disclosure of body-worn camera video recordings shall be governed by the Kentucky Open Records Act."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=47987

The exception to the Act which law enforcement agencies are most likely to invoke, KRS 61.878(1)(h), authorizes nondisclosure of records compiled in investigating or detecting violations of the law if premature disclosure of the records would harm the investigation or prosecution of the case. As interpreted by the Kentucky Supreme Court, the agency must demonstrate actual concrete harm from disclosure of the records, not speculative harm.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=48230

This is not an easy burden to meet. Nor should it be. KRS 61.878(1)(h) is the only exception to the Open Records Act that includes the statement that it "shall not be used by the custodian of the records to delay or impede the exercise of rights granted by" the Act. Nevertheless, many law enforcement agencies continue to read this exception so broadly as to encompass all records in an open investigation.

In Kentucky, the agency *must* articulate the actual harm that will result from disclosure of the video.

https://caselaw.findlaw.com/ky-supreme-court/1643297.html

The body cam statute establishes fourteen discretionary "carve outs" on which law enforcement can rely to withhold, for example, video depicting the interior of a private residence. And it provides enhanced rights of access to attorneys representing persons or entities involved in a recorded incident as well as persons or personal representatives of persons that were directly involved in the incident.

But it is abundantly clear on one point. If the recording contains footage that depicts an encounter between a police officer where there is use of force; leads to the detention or arrest of an individual; or depicts an incident which resulted in a formal complaint against a police officer, the release *shall* be governed by the Open Records Act and its exceptions.

The drafters of the Kentucky body cam video statute went to great lengths to close loopholes like those that have been used in Texas and elsewhere to erect barriers to public access. It remains to be seen if they succeeded since the statute has not — to the best of our knowledge — been tested.

They understood that "the public has a compelling interest in understanding what truly took place during an exchange between a citizen and law enforcement."

The camera doesn't lie.