On the 50th anniversary of Watergate, Ky has weakened its once strong open records laws

As the nation reflects on the 50th anniversary of Watergate, Kentuckians should pause to consider one of its least heralded but most enduring legacies: the open meetings and records laws. In January 2022, retired Henderson Gleaner reporter, Frank Boyett, described the local political backdrop against which the first glimmer of a statewide public access law emerged. Noting that while the federal Freedom of Information Act “took effect July 4, 1967, Kentucky’s statutes guaranteeing public access to official meetings and public records didn’t come along until the mid-1970s,” Boyett wrote. “On Jan. 8, 1972, the lead story on the front page of The Gleaner was about a bill that had been filed in Frankfort to guarantee greater governmental openness.

“It didn’t pass in the 1972 session, but a watered-down version passed in the 1974 General Assembly. It is still with us and is known as the Open Meetings Act. The 1972 bill was sponsored by Rep. Terry McBrayer. It covered virtually every public agency in the state and levied much stiffer penalties for noncompliance than the current law has. And the penalties had some teeth.

Kentucky’s Open Meetings Act of 1974 was followed in 1976 with the Kentucky Open Records Act.

A January 1976 story by Courier Journal staff writer James R. Russell picks up the historical narrative. Russell wrote: “The open records proposal, described by some as the ‘fresh air’ bill, is something of a companion to the open meetings (‘sunshine’) law passed in the 1974 General Assembly. An open records bill was also passed during the 1974 session, but was vetoed by then Governor Wendell Ford.” Russell explains that Ford vetoed the open records bill in 1974 “because he felt some records needed protection, including student education records and records relating to economic development.

One of the sponsors of the 1976 open records bill, Representative Joe Clarke observed, at the time: “The bill has grown out of the frustration that citizens feel when — after participating in the process of electing a representative government — elected officials act as if the government belongs to them rather than the people.”

History recounts that the impetus for these laws — and others across the country — was the secrecy associated with the United States’ military operations in Viet Nam and the cover-up associated with the greatest assault on democracy to that date: Watergate and interlocking political scandals that occurred during the Nixon administration.

Nearly 50 years later, we face the question whether future Kentuckians will look back on this as the period in which the commonwealth’s open government laws were successfully dismantled by attacks emanating from an openly hostile legislature and an equally hostile, but slightly more furtive, attorney general. Some may one day wax nostalgic about the laws’ “good run.” Others may struggle to understand the failure of elected officials to preserve the laws in deference to the broad public support they enjoyed.

The “right leaning” Bowling Green Daily News said it best in a January 2022 editorial that no doubt caused the legislative super majority and the attorney general considerable discomfort:

“We write yet again to decry the seemingly endless pursuit of Kentucky Republicans to mock the concept of public transparency, to weaken the press and to generally disregard basic freedoms afforded by the First Amendment.

“For decades, Kentucky’s Open Records Act has been hailed as a standard bearer for accountability laws. But in recent legislative sessions – including the current one – the state GOP has repeatedly spearheaded troubling attempts to diminish the law by seeking to erect barriers between the public and information it has a right to know.

“What’s going on here? Proponents of such measures are always ready with talking points laying out their supposed good intentions. But we’re not fooled. Amid a national political climate in which anti-media rhetoric is a cornerstone of mainstream conservative campaigning, are we really expected to believe it’s just an innocent coincidence that state Republicans are flooding the zone with a series of anti-journalism, anti-free speech and anti-transparency proposals?”

Amye Bensenhaver is co-founder of the Kentucky Open Government Coalition.