Close call for open records law as panel un-adopts mass exemptions for Kentucky elected officials

FRANKFORT — In a rare change of mind, a Senate committee rejected a measure that open government advocates warned would dismantle Kentucky’s open records law. 

An attorney for the Kentucky Press Association says the bill still has loopholes that would let government officials hide public records by keeping them on their private electronic devices. 

The Senate State and Local Government Committee on Wednesday approved a version of House Bill 509 that came out of the House earlier this session by a 6-3 vote with one pass. 

Members had initially adopted a committee substitute bill that Michael Abate, KPA’s attorney, said would exempt a swath of public officials from Kentucky’s open records law.

Members chose to un-adopt that version in a voice vote after hearing testimony. The committee substitute that was ultimate rejected was not on the Legislative Research Commission’s website as of Wednesday afternoon. 

Abate told the committee that the last-minute substitute would have removed “every state or local government officer” from the definition of a “public agency” — which would have exempted many public officials, including the governor, constitutional officers, mayors, city council members, school board members and more, from complying with the open records law.

“If we delete them from the definition of a ‘public agency,’ their records are not subject to inspection or to the open records law,” Abate said. 

Bill sponsor Rep. John Hodgson, R-Fisherville, disagreed, saying the definition of a “public agency” had “nothing to do with the definition of ‘open records.’” 

“I don’t know why the language was written this way in the ’70s,” he said. 

As it stands, House Bill 509 would require public agencies to furnish officials such as board members or employees with an email account on which to discuss public business. The agency could discipline employees who violate the requirement, but the bill doesn’t recommend a consequence. 

Additionally, the bill does not require public agencies to search private devices for public records, just devices or email accounts owned by the agency. 

Sen. Gex Williams, R-Verona, voted against the bill after raising concerns about the legislation not addressing public records created in text messages or other mobile app messages. He recalled being in the legislature when open records laws were amended in the wake of the Operation BOPTROT scandal. At the time, lawmakers, lobbyists and other public figures were convicted or faced trial on charges of bribery, extortion, fraud and racketeering.

“I congratulate the representative and everybody here for trying to address the problem of privacy versus our governmental records,” Williams said. “There’s an issue there that absolutely positively needs to be addressed, but we haven’t addressed it in a way that really accommodates the necessity for open records — government records — to be available to citizens.”

Williams said lawmakers should address this during the interim session. The other senators who voted no were Louisville Democratic Sens. Cassie Chambers Armstrong and Denise Harper Angel. 

A few opponents addressed the committee, including Abate and speakers from the League of Women Voters and Americans for Prosperity. 

Liam Gallagher, the legislative director for conservative group Americans for Prosperity, told the committee that “the fact that we are here with the Kentucky Press Association should raise alarm bells.” He expressed concerns with the committee substitute that was eventually un-adopted, calling it a “specious attempt” to strengthen open records laws in Kentucky. 

“It would likely lead to less transparency, and possibly open the door to evasion of records management and records disclosure obligations,” Gallagher said of the committee substitute.

He added that the group was “not thrilled” with the House version, but “will not try and stand in opposition to it.” 

While explaining his yes vote, Sen. Greg Elkins, R-Winchester, said that while he believes there may be some work to do on the bill, he liked that it “instructs public agencies to create a means of communication … that is open and subject to open records requests.” 

As of Wednesday morning, the bill had two readings in the Senate, making it eligible for a floor vote that afternoon. 

After the meeting, Hodgson told reporters that he was unaware of any incident in which a public official’s personal emails or texts were publicly released because of an open records request He said his legislation is “proactive.” He also said that there are “always unintended consequences” with legislation and that he believes in the open records process. 

“There is some kind of a … faultline we’re coming to here where the public’s right to know bumps up against an individual’s right to privacy,” Hodgson said. “There’s a dark side of open records requests where people can use them punitively. They can use them against personal enemies, against political enemies. There’s no limitation on how many open records requests somebody can file and you have five days to respond.”

After the committee hearing, Abate told reporters the bill “could have been much, much worse” considering what had earlier been proposed and temporarily adopted by the committee. He also raised concerns that the committee substitute was not publicly available ahead of the meeting. He said he received a copy around 9 p.m. the day before. 

“This is an example of what happens when you have a really important law, like the open records law, and people are trying to make backroom deals to change it in secret and not airing it,” Abate said. “You had testimony that this wasn’t intended to change anything, and I’m here to tell you it would have radically changed everything. This process is broken, and it shouldn’t be carried out with last-minute committee subs that never see the light of day before the committee voted to approve it.”

He added that he has seen a committee vote to not adopt a substitute once before. That bill also would have “gutted public transparency.”