‘Playing with fire:’ Bill limiting open records act progresses without most controversial provision

Published 1:49 pm Wednesday, March 27, 2024

Under Kentucky’s Open Records Act, journalists and private citizens can request certain information to hold public agencies accountable for their use of taxpayer dollars and authority. 

House Bill 509, which passed the Senate State and Local Government Committee Wednesday in a 6-3-1 vote, would limit ORA’s breadth. 

Sponsor Rep. John Hodgson, R-Fisherville, said the intent is to “modernize” the Open Records Act to account for newer methods of communication. He added that it would protect officials’ right to privacy.

“I’ve talked to a lot of open records advocates, but there is some kind of a fault line we’re coming to here where the public’s right to know bumps up against an individual’s right to privacy,” Hodgson said.

What would HB509 do?

Journalists, Kentucky businesses and private citizens can use the Open Rights Act to request “public records,” which include documents kept or used by a public agency related to their operations.

Under current law, public agencies include:

  • state and local government officers;
  • state and local government departments, divisions, bureaus, boards, commissions and authorities;
  • state and local legislative boards, commissions and committees;
  • county and city governing bodies, councils, school district boards and municipal corporations;
  • state and local courts, judicial agencies, government agencies including education boards;
  • any body that is at least 25% funded by state or local government funds; and
  • any body whose governing body is appointed by a public agency.

The bill would require public agency employees to use official email addresses to conduct business, not personal cell phones or devices.

If they violate this rule, employees would be subject to “appropriate discipline,” which includes potential removal from their board, commission or public agency.

As long as public agencies comply with this, Kentucky’s open records law would no longer apply to personal communication devices. Agencies would only be required to disclose information or documents within official agency email accounts, electronic devices or systems.

Under current law, text messages can be subject to ORA disclosure if they are used by government officials to conduct business, according to a Kentucky appellate court ruling in an ongoing lawsuit involving the Kentucky Department of Fish and Wildlife Resources Commission.

Several lawmakers questioned whether the bill would incentivize public agencies to “hide” controversial official business by using messaging apps like Signal on personal devices that would no longer be subject to disclosure.

Hodgson said that while there is nothing technically stopping that, public agency employees would be putting themselves at risk if they didn’t have official record of some final action, like awarding a contract or firing someone.

Abate said he doubts that any public agency would choose to discipline an employee who broke this rule.

“Agencies are often trying to hide records,” he said. “The chance that somebody’s going to fire someone because they send a personal email strikes me as fanciful and far-fetched.”

Committee substitute rolled back

A committee substitute that opponents said would gut Kentucky’s Open Records Act was withdrawn after testimony against it.

The discarded substitute would have removed “every state or government officer” from the list of public agencies subject to the Open Records Act.

The governor, mayors, constitutional officers and other elected officials would have been exempted from the Open Records Act under the substitute, said Michael Abate, a lawyer representing the Kentucky Press Association and the Open Government Coalition.

It would have “radically changed everything,” despite Hodgson’s claim otherwise, he said.

Liam Gallagher, a representative from conservative advocacy group Americans for Prosperity, testified against the substitute. He said it would have given bad actors the incentive to “invade” the Kentucky Open Records Act.

League of Women Voters representative Cindy Heine also spoke in opposition, saying that a democratic government must protect the public’s right to know what elected officials are doing.

Abate said HB509 is still a bad bill even without the substitute, but it could have been much worse. He remarked that the last substitute was never made publicly available.

“This is a dangerous process,” he said. “We’re playing with fire and we’re doing it at the last minute and under the cloak of backroom deals and that’s wrong. People in Kentucky deserve better.”

What does this mean for Kentuckians?

Last August, Jefferson County Public Schools experienced a transportation crisis on the first day of school, when its new busing plan failed.

But as journalists and more recently, auditors, began searching for reasons why, they ran into a suspicious lack of email communications concerning the crisis.

JCPS told requesters that they didn’t have records. However, a recent audit uncovered that JCPS employees thought that if they conducted official business over text, they wouldn’t have to disclose as much under the Open Records Act.

“That’s not true as a matter of law, we litigated upon that issue,” Abate said. “But if this bill passes, that will become the law and any public employee who wants to evade transparency can just text.”

Lawmaker opposition

Sens. Gex Williams, R-Verona, Cassie Chambers Armstrong, D-Louisville, and Denise Harper Angel, D-Louisville voted against HB509, while Sen. Amanda Mays Bledsoe, R-Lexington, passed.

Williams said that while he agrees with Hodgson that there is a privacy issue within the current Open Records Act, he doesn’t think this bill addresses it while accommodating the need for open records.

Armstrong said she was concerned about the incentives this could set up, and Harper Angel said the bill does not move Kentucky toward greater transparency.

Mays Bledsoe commented that texting is a primary form of communication now, even between bosses and employees.

Next, the bill heads to the Senate floor, potentially as early as Wednesday afternoon.