House Bill 174, the one some have referred to as that “Gruesome Photo” legislation, was before the House State Government Committee on Thursday. I refer to last week’s On Second Thought for this background:
What is a ‘gruesome’ photo?
It’s not defined in the legislation known as House bill 174 and your feeling about a gruesome photo could well be different than mine. So therein lies one issue, who’s to determine what’s gruesome and what’s not. That’s only part of the problem. The legislation would require the courts to seal such records, forever, and the courts normally resent the legislature telling it what to do, or in this case, what to release and what not to release.
HB 174 stems from the 2018 Marshall County High shootings that left two students deceased. HB 174 was to be heard the last two Thursdays by the House State Government Committee but has been postponed both times. It’s now expected to be on the agenda at the committee’s meeting Thursday, February 13. KPA General Counsel Michael Abate will be representing KPA and will include comments as to why the legislation is “clearly unconstitutional.”
Because what was said in advance about the bill, and apparently some of that coming from legislators, Rep. Bill Freeland, R-Benton, the sponsor, did amend the language to delete the “gruesome” photos language in his original version. When learning of KPA’s opposition before the meeting, Rep. Freeland noted repeatedly during his testimony on the bill that he had talked with “media” members and none had any problems with his original bill.
While testifying before the committee, KPA General Counsel Michael Abate was given a copy of the committee sub. After the meeting and able to comprehend what the committee sub changed, Michael said, “KPA is very concerned about this legislation, which purports to take evidence made public at criminal trials and make it off limits to the public once the trial concludes. That not only infringes on courts’ inherent and exclusive rights to control their own files, but violates the public’s longstanding First Amendment and common law rights to access materials filed with a court. This kind of restriction is a significant intrusion into the public’s right to know how the Commonwealth is administering justice in its name.”
HB 174 received its second reading Friday morning during the House session and could be up for passage on Tuesday, February 18 (the legislature is off Monday for Presidents’ Day).
Here is the language replace the paragraph about “gruesome photos”:
(q) Except as provided in KRS 61.168, photographs or videos that depict the death, killing, rape, or physical or sexual assault or abuse of a person. However, such photographs or videos shall be made available at the request 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.
KPS 61.168 noted in the committee sub is language about the use of body cams by law enforement agencies. There was also a change in the language that clarifies the public can email requests for public records. However, another version of the language is expected to be included in legislation being drafted by Rep. Jason Petrie. That legislation has not been filed but we’re told KPA will be able to review and suggest changes prior to it being introduced. The language included in the House Bill 174 committee sub is below and is in bold/underlined/Italic. Two parts — (b) and (c) are being deleted from the current language.
(2) Any person shall have the right to inspect public records. The official custodian may require:
(a) 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;
(b) Facsimile transmission of the written application described in paragraph (a) of this subsection; or (c) E-mail of the application described in paragraph (a) of this subsection]