Close call for open records law as panel un-adopts mass exemptions for Kentucky elected officials

Bill still has transparency loopholes, says attorney for Kentucky Press Association

BY: McKenna Horsley, Kentucky Lantern

FRANKFORT — In a rare change of mind, a Senate com­mit­tee reject­ed a mea­sure that open gov­ern­ment advo­cates warned would dis­man­tle Kentucky’s open records law. 

An attor­ney for the Kentucky Press Association says the bill still has loop­holes that would let gov­ern­ment offi­cials hide pub­lic records by keep­ing them on their pri­vate elec­tron­ic devices. 

The Senate State and Local Government Committee on Wednesday approved a ver­sion of House Bill 509 that came out of the House ear­li­er this ses­sion by a 6–3 vote with one pass. 

Members had ini­tial­ly adopt­ed a com­mit­tee sub­sti­tute bill that Michael Abate, KPA’s attor­ney, said would exempt a swath of pub­lic offi­cials from Kentucky’s open records law.

Members chose to un-adopt that ver­sion in a voice vote after hear­ing tes­ti­mo­ny. The com­mit­tee sub­sti­tute that was ulti­mate reject­ed was not on the Legislative Research Commission’s web­site as of Wednesday afternoon. 

Abate told the com­mit­tee that the last-minute sub­sti­tute would have removed “every state or local gov­ern­ment offi­cer” from the def­i­n­i­tion of a “pub­lic agency” — which would have exempt­ed many pub­lic offi­cials, includ­ing the gov­er­nor, con­sti­tu­tion­al offi­cers, may­ors, city coun­cil mem­bers, school board mem­bers and more, from com­ply­ing with the open records law.

“If we delete them from the def­i­n­i­tion of a ‘pub­lic agency,’ their records are not sub­ject to inspec­tion or to the open records law,” Abate said. 

Bill spon­sor Rep. John Hodgson, R‑Fisherville, dis­agreed, say­ing the def­i­n­i­tion of a “pub­lic agency” had “noth­ing to do with the def­i­n­i­tion of ‘open records.’” 

“I don’t know why the lan­guage was writ­ten this way in the ’70s,” he said. 

As it stands, House Bill 509 would require pub­lic agen­cies to fur­nish offi­cials such as board mem­bers or employ­ees with an email account on which to dis­cuss pub­lic busi­ness. The agency could dis­ci­pline employ­ees who vio­late the require­ment, but the bill doesn’t rec­om­mend a consequence. 

Additionally, the bill does not require pub­lic agen­cies to search pri­vate devices for pub­lic records, just devices or email accounts owned by the agency. 

Sen. Gex Williams, R‑Verona, vot­ed against the bill after rais­ing con­cerns about the leg­is­la­tion not address­ing pub­lic records cre­at­ed in text mes­sages or oth­er mobile app mes­sages. He recalled being in the leg­is­la­ture when open records laws were amend­ed in the wake of the Operation BOPTROT scan­dal. At the time, law­mak­ers, lob­by­ists and oth­er pub­lic fig­ures were con­vict­ed or faced tri­al on charges of bribery, extor­tion, fraud and racketeering.

“I con­grat­u­late the rep­re­sen­ta­tive and every­body here for try­ing to address the prob­lem of pri­va­cy ver­sus our gov­ern­men­tal records,” Williams said. “There’s an issue there that absolute­ly pos­i­tive­ly needs to be addressed, but we haven’t addressed it in a way that real­ly accom­mo­dates the neces­si­ty for open records — gov­ern­ment records — to be avail­able to citizens.”

Williams said law­mak­ers should address this dur­ing the inter­im ses­sion. The oth­er sen­a­tors who vot­ed no were Louisville Democratic Sens. Cassie Chambers Armstrong and Denise Harper Angel. 

A few oppo­nents addressed the com­mit­tee, includ­ing Abate and speak­ers from the League of Women Voters and Americans for Prosperity. 

Liam Gallagher, the leg­isla­tive direc­tor for con­ser­v­a­tive group Americans for Prosperity, told the com­mit­tee that “the fact that we are here with the Kentucky Press Association should raise alarm bells.” He expressed con­cerns with the com­mit­tee sub­sti­tute that was even­tu­al­ly un-adopt­ed, call­ing it a “spe­cious attempt” to strength­en open records laws in Kentucky. 

“It would like­ly lead to less trans­paren­cy, and pos­si­bly open the door to eva­sion of records man­age­ment and records dis­clo­sure oblig­a­tions,” Gallagher said of the com­mit­tee substitute.

He added that the group was “not thrilled” with the House ver­sion, but “will not try and stand in oppo­si­tion to it.” 

While explain­ing his yes vote, Sen. Greg Elkins, R‑Winchester, said that while he believes there may be some work to do on the bill, he liked that it “instructs pub­lic agen­cies to cre­ate a means of com­mu­ni­ca­tion … that is open and sub­ject to open records requests.” 

As of Wednesday morn­ing, the bill had two read­ings in the Senate, mak­ing it eli­gi­ble for a floor vote that afternoon. 

After the meet­ing, Hodgson told reporters that he was unaware of any inci­dent in which a pub­lic official’s per­son­al emails or texts were pub­licly released because of an open records request He said his leg­is­la­tion is “proac­tive.” He also said that there are “always unin­tend­ed con­se­quences” with leg­is­la­tion and that he believes in the open records process. 

“There is some kind of a … fault­line we’re com­ing to here where the public’s right to know bumps up against an individual’s right to pri­va­cy,” Hodgson said. “There’s a dark side of open records requests where peo­ple can use them puni­tive­ly. They can use them against per­son­al ene­mies, against polit­i­cal ene­mies. There’s no lim­i­ta­tion on how many open records requests some­body can file and you have five days to respond.”

After the com­mit­tee hear­ing, Abate told reporters the bill “could have been much, much worse” con­sid­er­ing what had ear­li­er been pro­posed and tem­porar­i­ly adopt­ed by the com­mit­tee. He also raised con­cerns that the com­mit­tee sub­sti­tute was not pub­licly avail­able ahead of the meet­ing. He said he received a copy around 9 p.m. the day before. 

“This is an exam­ple of what hap­pens when you have a real­ly impor­tant law, like the open records law, and peo­ple are try­ing to make back­room deals to change it in secret and not air­ing it,” Abate said. “You had tes­ti­mo­ny that this wasn’t intend­ed to change any­thing, and I’m here to tell you it would have rad­i­cal­ly changed every­thing. This process is bro­ken, and it shouldn’t be car­ried out with last-minute com­mit­tee subs that nev­er see the light of day before the com­mit­tee vot­ed to approve it.”

He added that he has seen a com­mit­tee vote to not adopt a sub­sti­tute once before. That bill also would have “gut­ted pub­lic transparency.”