Bill would ‘rip the heart out of’ KY’s open records law, First Amendment advocates say

A bill proposed in the Kentucky House would overhaul access to government records, significantly limiting what records are considered public.

House Bill 509 from Rep. John Hodgson, R-Fisherville, narrows the definition of a “public record,” accessible via an open records request, to only include documentation that gives “notice to a person outside the public agency of a transaction or final action.”

Introduced Monday, the bill would explicitly exclude correspondence “in which opinions are expressed or policies formulated or recommended” from being accessible via an open records request.

The move has alarmed open records advocates, including Michael Abate, a Louisville-based attorney who specializes in open government matters and is one of the commonwealth’s leading experts on public documents and defending the First Amendment.

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“This is a terrible bill that would essentially rip the heart out of the existing open records law. It would make almost every record currently available to the public unavailable,” Abate told the Herald-Leader Tuesday.

“It’s easily the most anti-transparency piece of legislation that I’ve seen advanced in the state in the last 10 years, and I think going back decades.”

Abate and Amye Bensenhaver, co-founder of the Kentucky Open Government Coalition and former assistant state attorney general, said limiting the definition of a “public record” to records that give notice to an outside person of a transaction or final action could exclude several documents to which the public should have access.

They said the following could be exempted if a public agency does not notify an outside person of “a transaction or final action:” department budgets, records related to wrongdoing of public employees, consultant reports, Cabinet for Health and Family Services records related to child fatalities, petitions in support of executive pardons emails exchanged between employees or representatives about public business.

Why is it being proposed?

Hodgson disagrees with Abate. He said his bill would not significantly limit the public’s access to records.

“I don’t believe anything that’s disclosable today would not be disclosable tomorrow under this bill,” Hodgson said.

The bill is co-sponsored by House Speaker David Osborne, R-Prospect, and Rep. Jason Nemes, R-Louisville.

Osborne told the Herald-Leader that the bill essentially expands the protections that recently shielded the Legislative Branch to the Executive Branch.

Osborne also said the bill has support beyond Republicans. Democratic Gov. Andy Beshear supports it, Osborne and Hodgson said. A spokesperson for Beshear’s office did not confirm that Tuesday night.

“It has been discussed with every member of the executive branch — governor, the auditor, all the constitutional officers — all of which have indicated support for it. We decided to give them the same coverage that we provided legislators,” Osborne said.

The House Speaker added that he believes the House will eventually pass the bill.

The bill’s primary sponsor, Hodgson, added the two leading municipal government special interest groups, the Kentucky Association of Counties and the Kentucky League of Cities support the bill. The bill would apply to local governments, as well as the state’s executive branch.

Hodgson, who served as an operations director focusing on “red tape reduction” under Republican Gov. Matt Bevin before his election to the legislature, said the bill would also help recruit talent to the Executive Branch.

“It’s really hard to get people to come work for state government if you say, ‘Hey, will you work for state government for a 50% pay cut? Oh, by the way: Everything that you do and say on your personal device may be subject to anybody in the state of Kentucky asking to see it,’” Hodgson said.

The first few pages of the bill focus on public officials emails. It requires, with some exceptions, that public employees and board members be furnished with state email accounts. It also makes clear that employees or board members using “an email account other than an agency-furnished email account or agency-designated email account to conduct” business is grounds for removal.

Hodgson said he was “certainly not in favor of people covering up anything,” but felt it was logical to exempt discussions about policy via text or email because such in-person discussions are not available to be searched. He said the bill includes as a public record “everything that you would want as a citizen.”

“Anytime the state is spending money, anytime the state is awarding a contract, anytime the state is making a judgment on ruling with somebody having us regulation — those are final actions,” and still subject to an Open Records Request, Hodgson said.

Hodgson and open records advocates interpret the bill differently: The legislator said no current record available to the public would be exempted. Abate and Bensenhaver strongly disagree.

“It is no exaggeration to suggest that the fate of the Kentucky Open Records Act is at stake,” Bensenhaver said in an email to the Herald-Leader.

The current definition of a public record that Kentuckians can access via an open records request is any documentation “prepared, owned, used, in the possession of or retained by a public agency.” The law already contains various exceptions to this law pertaining to economic development, legal matters, graphic materials and more.

Most of the exemptions listed in Hodgson’s bill would be new.

Hodgson’s bill would limit the definition of a “public record” to records that give notice to an outside person of a transaction or final action. Examples of a “transaction or final action” include:

• Awarding, issuing, or amending a contract.

• Spending agency funds.

• Issuing a fine or penalty.

• Issuing a public declaration or announcement of an event, 20 occurrence, determination, or decision of the public agency.

The bill explicitly exempts the following categories of records from being subject to an open records request:

• Preliminary drafts.

• Notes.

• Correspondence with private individuals, other than correspondence which is intended to give notice of a transaction or a final action.

• Preliminary recommendations or discussions.

• Scheduling matters.

• Communications of a purely personal nature unrelated to any governmental function.

• Memoranda, emails or text messages in which opinions are expressed or policies formulated or recommended.

• Information or documents stored or retained on a device or email account that is the personal property of a current or former employee, officer, board member or commission member.

“It’ll be the death of transparency, and there’s no reason for it,” Abate said.

Bensenhaver lashed out at the new definition of “public record” under the proposed bill.

“Unless a record is not only ‘prepared, owned, used, in the possession of, or retained by a public agency’ but also documents ‘a transaction or final action,’ it is not a ‘public record’ subject to the open records law,’ It is, for all intents and purposes, inaccessible to the public,” Bensenhaver said.

Bensenhaver also pointed out the bill would make it harder for Republicans to dig up dirt on Democratic Gov. Andy Beshear, their ostensible political enemy.

“Ironically, for those who might seek to hold our sitting governor and executive branch accountable through their public records, the sponsors provide a statutorily approved cloaking device,” Bensenhaver said.