Gerth: Kentucky lawmaker says open records bill doesn’t change anything, so why file it?

Bad poker players often have something called a “tell.” It’s something they do that tips off their opponents if they’re bluffing or sometimes if they have a really good hand.

I want to play poker with state Rep. John Hodgson.

The Republican from Fisherville showed his “tell” earlier this week when he denied to several reporters that his open records bill would allow politicians and government employees to hide any records that are considered public under the current law.

"My offer is this: If someone can point to a type of record that is disclosable under current law that would NOT be disclosable under HB 509, I will gladly revise the language," Hodgson said in an email. "Every record that is disclosable now remains disclosable."

Here’s the “tell” – HE FILED THE BILL.

Why would we even need the legislation if it wouldn’t put records that are disclosable now out of reach of those seeking them through the state open records act?

The simple answer is, he wouldn’t.

So, I asked Hodgson why he filed the bill if it wouldn’t give nosy reporters and political opponents and average citizens less access to records that are available now. He responded by simply explaining what the bill does, which he acknowledges it does something.

Under current law, if a government employee uses personal cell phones or email accounts to conduct public business, any written messages involving that public business must be provided if someone seeks those messages through an open records request.

Pursuant to the law, the person would not have to turn over personal messages. So, if they were, say, having an affair, they wouldn’t have to provide those text messages telling their sweetie to meet them at the Red Roof Inn.

Politicians and government employees are “encouraged” to follow the law and turn over texts and emails on their non-government devices because whoever they sent the email or text messages to might just turn over the records.

If they don’t turn over the records, there’s a chance they could be caught violating the law.

Hodgson’s bill would require government agencies to give all employees cell phones and email accounts and require them to use those cell phones and email accounts when conducting business. They could continue to have personal cell phones and email accounts but would be prohibited from using those devices for work purposes.

Hodgson said his bill provides a "balance of the public’s right to know with the employee’s right to privacy."

It really sticks a knife in the public's right to know.

Government agencies are all in favor of this. Of course they are.

In Hodgson’s make-believe world, where everyone follows rules and never makes mistakes, it might work.

Problem is, everyone doesn’t follow rules and some people make mistakes.

And so, if a politician is intent on evading the open records law, they could do it by using their personal phone to conduct government business. As long as they are sending messages to another person’s private device or email account, none of the messages would be discoverable.

It doesn’t even require the person to be trying to break the law. What if a government employee drops their work cell phone in the toilet and it stops working, or what if they simply leave it on the bed stand when they head to work in the morning.

Do we expect them to not use a phone until they get the phone that landed in the commode replaced, or until they return home to get their work cell off the bed stand?

Of course not. They’re going to use their personal phone. That’s what you’d do.

Under Hodgson’s bill, the politician who uses a text message to arrange a tryst at the Red Roof Inn wouldn’t have to turn that message over to some nosy reporter. But then again, he wouldn’t have to do that under the current law.

I’ll take up Hodgson’s challenge.

Any text message involving government business sent by a government employee or office-holder on a personal cell phone – whether it’s being done by a nefarious politician or by a government employee who just doesn’t want to use a poopy cell phone – wouldn’t be disclosed under his bill.

And, now, if Hodgson doesn’t change his language to close this enormous loophole or abandon the measure altogether, it will be another “tell.”

(Hodgson said after this column posted that he would amend his bill after complaints from constituents but didn't say exactly what those changes would be.)

This “tell” will simply be the tipoff that he doesn’t tell the truth.

Joseph Gerth can be reached at 502-582-4702 or by email at jgerth@courierjournal.com.

This article originally appeared on Louisville Courier Journal: Why did John Hodgson file his open records bill if it does nothing?