The Kentucky House voted Friday to weaken the state’s Open Records Act in several ways, such as letting state lawmakers shield themselves from inquiries and blocking information requests from outside Kentucky.
The House voted 71-to-27 for House Bill 312, which was originally introduced as a minor technical correction in the law about financial institutions.
But at a House State Government Committee hearing on Thursday, the sponsor introduced a last-minute substitute version of the bill that would rewrite portions of the open records law that citizens use to request information from public agencies.
“This is how bad law flies under the radar,” the Kentucky Open Government Coalition protested in a statement.
During the House floor vote on Friday, members of the Democratic minority warned their colleagues against making government less transparent to the public.
“This is what citizens and voters hate about politics,” said state Rep. Mary Lou Marzian, D-Louisville. “What are we hiding? What are we trying to keep from the public?”
“This is going to come back to bite us, I’m sure,” Marzian said. “But why would we have a change in our system of open public records if we didn’t have something to hide? That’s what citizens hate about politics. They think that we’re behind closed doors, cutting deals with the bigwigs, with the wealthy, and now we want to hide it.”
However, Republican lawmakers said public agencies have been overwhelmed with “burdensome” records requests, some of them filed by commercial entities. There is no constitutional guarantee of public records access, they added.
“This is not an attack on the First Amendment,” said state Rep. Jason Petrie, R-Elkton. “That’s a federal constitutional protection that everyone enjoys. Open records, in essence, is not a First Amendment chapter. What it is is a burden that this legislature, a duty that this legislature, has placed upon itself.”
The House bill, which proceeds to the Senate, would:
▪ Limit use of the Kentucky Open Records Act to residents of Kentucky; businesses located in or registered with the state of Kentucky; and news organizations based in Kentucky or affiliated with news outlets inside the state.
▪ Establish the Legislative Research Commission — a panel of leading lawmakers from the House and Senate — as the final arbiter of what legislative branch records must be released to the public under the Open Records Act. Also, any request for records about a lawmaker would prompt an immediate notification to that lawmaker.
This portion of the bill seeks to undo a 2019 decision from the Kentucky Supreme Court. In that case, the high court ruled that Franklin Circuit Court can hear appeals on legislative records denials from the LRC.
The case involved an open records request made by the Lexington Herald-Leader, which wanted information about a sexual harassment complaint against former state Rep. Jim Stewart III, R-Flat Lick. The LRC refused to comply with the newspaper’s request, leading to a lengthy legal contest.
Lawmakers’ official correspondence with others should be exempt from disclosure, as should other types of legislative documents, House Speaker David Osborne told reporters Friday after the House adjourned.
“I do believe that many of these communications are incredibly sensitive,” said Osborne, R-Prospect.
“They’re incredibly sensitive and incredibly confidential,” Osborne said. “And my interaction, my work with bill drafters, until that bill is filed and ready to go, some of that stuff is very sensitive information, prior to. And I think that should be protected. I think that our communications with our constituents should be protected.”
▪ Extend the response time for public agencies that receive a records request, from three business days to five business days. During the current state of emergency due to the COVID-19 pandemic, public agencies in Kentucky have 10 business days to respond, but that is set to end when the emergency declaration is rescinded.
▪ Prevent parties to a lawsuit from using the Open Records Act to circumvent the court-supervised discovery process and retrieving relevant public records on their own.
▪ Instruct the state Office of the Attorney General to create a standardized records request form for public agencies to use.
During the House committee hearing on Thursday, the bill’s supporters said too much taxpayer money is spent responding to requests for information from people and businesses outside of Kentucky. (Under state law, public agencies can charge “a reasonable fee” — generally, 10 cents a page — for providing copies of records, and they can request payment before providing the records.)
“Unfortunately, many of our public records custodians are inundated with out-of-state requests from groups and people that are fishing for anything they can sell or re-purpose,” said the bill’s sponsor, state Rep. Bart Rowland, R-Tompkinsville.
J.D. Chaney, executive director of the Kentucky League of Cities, told the committee that local governments want to be transparent. But they also want to provide services efficiently to local citizens, and given limited manpower, a large number of records requests can tie up local officials for days, Chaney said.
Democrats challenged the idea that requests for public information from outside Kentucky are less important because they aren’t coming from state taxpayers.
“It’s your contention that any out-of-state request by its nature is not permissible or as valuable because they don’t contribute to our tax base? That’s illogical to me when we get so many federal dollars that people from all over the country give to the federal government,” state Rep. Kelly Flood, D-Lexington, told Rowland and Chaney.
“The fact that we’re even thinking of closing our state borders to open information flow is against every democratic bone in my body, gentlemen,” Flood said.
The Kentucky Press Association said it would not oppose the House bill. Jon Fleischaker, a Louisville attorney who handles First Amendment cases for the KPA, said lawmakers have wanted some of these open records changes for the last few years, and he appreciates they’re at least letting him participate in negotiations over the final bill.
Another group, the Kentucky Open Government Coalition, warned that the House bill could undermine many legitimate uses of the Open Records Act.
Amye Bensenhaver, a retired assistant attorney general who heads the coalition, shared examples Thursday of out-of-state news organizations that broke important investigative stories using Kentucky public records. For instance, in 2014, CNN reported on high mortality rates at the University of Kentucky pediatric heart surgery program using documents it requested from the school, she said.
Osborne, the House speaker, said he didn’t have a solution for national news organizations who will be seeking public information from Kentucky if the bill becomes law.
“I don’t guess I’ve thought about that particular issue,” Osborne said. “I would assume that if they have affiliates locally, they would be able to work through those channels.”
Even beyond the news media, Bensenaver said, out-of-state motorists involved in a crash in Kentucky write to request their accident reports, and people who are looking to place their loved ones in a Kentucky nursing home have a legitimate reason to request state facility inspection reports.
The bill’s sponsors fail to recognize that “the importance of state government information does not stop at state lines,” she said.
Herald-Leader staff writer Daniel Desrochers contributed to this report.
This story was originally published February 26, 2021 2:42 PM.
