Andy Beshear sidesteps questions on support for bill that would overhaul KY open records

Agency budgets, emails, personnel records of public employees, consulting or investigative reports paid with public funds, police body camera footage, donations to public agencies — all of these records could be inaccessible to the public under the new definition of a public record proposed in a bill gaining traction in the Kentucky House.

House Bill 509, from Rep. John Hodgson, R-Fisherville, would greatly narrow the definition of what would be accessible to Kentuckians via open records requests to only include documentation that gives “notice to a person outside the public agency of a transaction or final action.”

In the days following the Feb. 12 introduction of the major overhaul of Kentucky’s 48-year-old open records law, transparency advocates have increased alarm, government groups have expressed support and Gov. Andy Beshear has stayed largely mum.

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

David Thompson, president of the Kentucky Press Association, issued a stark condemnation of the bill. He said that the bill “eviscerates” the public’s access to government records.

In addition to its redefinition of what a public record is, the bill requires agencies to provide employees and members with state email addresses. 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.

House Speaker David Osborne, R-Prospect – another member of leadership House GOP Whip Jason Nemes, R-Middletown, is also a co-sponsor – claims that Democratic Gov. Andy Beshear supports the bill. Osborne also characterized the bill as essentially expanding the protections passed in 2021 that shielded the Legislative Branch from open records requests to the Executive Branch.

In 2021, Beshear vetoed that bill, calling it a “recipe for secrecy.”

This year, the Democratic governor only has good things to say about it.

In a statement to the Herald-Leader and in response to questions at a Thursday news conference, Beshear has sidestepped questions on whether he supports the new limitations to the definition. Instead, he has exclusively commented in support of the bill’s provisions on public emails.

“I believe a full explanation of the bill also has to talk about the fact that it mandates (that) anyone doing official business, do it on an official email account or other official means of communication,” Beshear said. “That is a big step that could take any communication being done on different devices and ensure that it’s done on a device that is searchable by an open records custodian in the area in which they work.”

Beshear framed that part of the bill as a response to a recent Court of Appeals ruling against the Kentucky Fish and Wildlife Resources Commission. That ruling affirmed that commission business communicated on private devices and accounts qualified as a public record.

On the redefinition of public record, Beshear stressed that he hasn’t “fully reviewed the bill,” and suggested that amendments to the bill could occur.

House Bill 509 has yet to be assigned to committee, but Osborne said that he expects it to pass through his chamber. Hodgson told the Herald-Leader Thursday he is working on addressing questions “from concerned citizens who use (open records requests).”

Since its filing on Monday, the bill has continually drawn fire from open records attorneys Michael Abate and John Fleischaker.

“Want to know why your kid’s teacher or coach was fired (or wasn’t)? Sorry, the allegations in the investigative file are not the “final action,” so you can’t see them,” the pair wrote in a recent column shared with Kentucky newspapers.

“Looking for a copy of body camera video? No luck there, either. How about emails between elected school board members about district policies or incidents? Now off limits.

“The making of public policy is the public’s business. Citizens of all parties should unite in strong opposition to HB 509’s radical dismantling of the Open Records Act. If this bill becomes law, you’ll no longer have the right to see what public officials and employees are doing on the public’s dime.”

Hodgson told the Herald-Leader both of the state’s main local government special interest groups, the Kentucky Association of Counties and the Kentucky League of Cities, support the bill.

In a statement, Kentucky League of Cities Executive Director J.D. Chaney said that while the organization’s board of directors hasn’t voted yet on the bill, he expects them to support it.

“The legislation brings much needed clarity by requiring the use of an agency furnished or designated email account for the conduct of public business and this will ensure that the official records custodians of public agencies will have access to responsive records when open records requests are received,” Chaney said.

A spokesperson for the Kentucky Association of Counties has yet to respond to a request for comment.

Next step for the bill? Committee hearings in the House where legislators will be able to discuss and debate the measure.